Karnataka High Court
Malashre @ Sridevi W/O Late ... vs Mounesh S/O Madivalayya And Anr on 9 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA No.200465/2021
C/W
MFA No.200382/2021 (MV)
IN MFA NO.200465/2021
BETWEEN:
The Divisional Controller,
Central Office, New KSRTC Kalaburagi
Depot No.2, Kalaburagi
Now through its Chief Law Officer NEKRTC,
Central Office, Sarige Sadahana, Main Road,
Kalaburagi.
... Appellant
(By Sri Sharanabasappa M. Patil, Advocate)
AND:
1. Malashri @ Shridevi W/o Late Devindrappa,
Age: 26 years, Occ: Household,
2. Veeramounesh S/o Late Devindrappa,
Age: 5 years,
2
3. Veerabhadrappa S/o Dodda Devindrappa,
Age: 56 years, Occ: Carpenter,
4. Nagalaxmi W/o Veerabhadrappa,
Age: 52 years, Occ: Household,
Since respondent No.2 is minor represented
by his natural mother respondent No.1,
All are R/o Hadaginal, Tq. Sindhanur,
R/o Janath Colony, Ashapur Road,
Raichur-584101.
5. Mounesh S/o Madivalayya,
Age: 46 years, Occ: Driver of KSRTC Bus
Bearing No.KA-32/F-2317, Kalaburagi Depot.2,
R/o Maganagera, Tq. Jewargi,
Dist. Kalaburagi-585310.
... Respondents
(Sri. Basavaraj R.Math, Advocate for R1 to R4;
R2 is minor reptd. By R1;
Notice to R5 is dispensed with v/o dated 04.10.2021)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
order of the tribunal and call for the lower court records
and hear the parties and set aside the judgment dated
20.11.2020 and award dated 27.11.2020 in MVC
No.247/2019 in the court of Addl. Senior Civil Judge and
MACT at Raichur.
IN MFA NO.200382/2021
BETWEEN:
1. Malashree @ Shridevi W/o Late Devindrappa,
Age: 26 years, Occ: Household,
3
2. Veeramounesh S/o late Devindrappa,
Age: 5 years,
3. Veerabhadrappa S/o Dodda Devindrappa,
Age: 56 years, Occ: Carpenter,
4. Nagalaxmi W/o Veerabhadrappa,
Age: 52 years, Occ: Household,
Since appellant No.2 is minor, represented by
his natural mother appellant No.1.
All are R/o Hadaginal, Tq. Sindhanur,
Now R/o Janath Colony, Ashapur road,
Raichur-584101.
... Appellants
(By Sri Basavaraj.R.Math, Advocate)
AND:
1. Mounesh S/o Madivalayya,
Age: 46 years, Occ: Driver of KSRTC
Bus bearing No.KA-32/F-2317,
Kalaburagi Depot.2,
R/o Maganagera, Tq. Jewargi,
Dist. Kalaburagi-585310.
2. The Divisional Controller,
Central Office, New KSRTC,
Kalaburagi Depot No.2,
Kalaburagi-585103.
... Respondents
(Sri Sharanabasappa M.Patil, Advocate for R2;
Notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for
records and modify the impugned judgment and award
dated 20.11.2020 passed by the Addl. Senior Civil Judge
and MACT, at Raichur in MVC No.247/2019.
4
These appeals coming on for admission this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
MFA.No.20465/2021 is preferred by the KSRTC
assailing the judgment and award dated 20.11.2018
in MVC.No.247/2019 on the file of the Additional
Senior Civil Judge and MACT, Raichur ("the Tribunal"
for short) on the ground of liability and quantum.
2. MFA.No.20382/2021 is filed by the
claimants assailing the judgment and award dated
20.11.2018 in MVC.No.247/2019 on the file of the
Additional Senior Civil Judge and MACT, Raichur ("the
Tribunal" for short) seeking enhancement of
compensation.
3. The parties herein are referred to as per
their ranking before the Tribunal.
4. The claimants filed claim petition under
Section 166 of the Motor Vehicles Act, 1988 ("the Act"
for short) claiming compensation on account of death
of one Sri Devendrappa son of Veerabhadrappa who
died in a fatal road traffic accident which occurred on
22.04.2019 when the deceased was riding the
motorcycle bearing registration No.KA-36/R-7326 and
was proceeding towards Lingasugur and when he was
near the land of one Nagappa, the KSRTC bus bearing
registration No.KA-32/F-2317 came in a rash and
negligent manner and dashed against the motorcycle,
due to which the deceased suffered grievous injuries
and was shifted to the Government Hospital,
Lingasugur and while he was under treatment, he
succumbed to the injuries sustained by him. It is
stated that the deceased was a carpenter and was
earning Rs.20,000/- per month and was aged about
25 years at the time of accident. The claimants are
the wife, child and parents of the deceased.
5. On issuance of notice, by the Tribunal,
respondent Nos.1 and 2 appeared and filed their
written statement.
6. Learned counsel for respondent No.1/driver
of the KSRTC bus contended that he was the slow and
was not rash and negligent in driving the bus and it
was the deceased who drove the motorcycle in a rash
and negligent manner and lost control and fell down
and also contended that the KSRTC bus is no way
concerned with the accident.
7. Learned counsel appearing for respondent
No.2/KSRTC would contend that the accident was
caused due to the rash and negligent riding of the
motorcycle by the deceased and there was no rash
and negligent driving on the part of the driver of the
KSRTC bus. It is further contended that on the
complaint of one Devendrayaa son of Narasappa
approached the Lingasugur Police Station and has
registered FIR and it is a false case that is registered
against the driver of the KCRTC and thus, sought for
dismissal of the claim petition.
8. On the basis of the pleadings of the parties,
the Tribunal framed the following:
ISSUES
1. Whether the petitioners prove that they
are legal representative of deceased
Devindrappa S/o Veerabhadrappa?
2. Whether the petitioners prove that,
said Devindrappa died on 22.04.2019
at about 11:15 am., on Maski-
Lingasugur main road, near Nagappa
land, in accident arising due to rash
and negligent manner driving of driver
of the KSRTC bearing registration
No.KA-32/F-2317?
3. Whether the petitioners are entitled for
compensation? If so, how much and
from whom?
4. What order or award?
9. In order to substantiate their claim, the
claimant No.1 examined herself as PW1 and one
witness as PW2 and got marked Exs.P-1 to P-20. On
the other hand, the respondent No.1 examined one
witness as RW1 and no documents were marked.
10. The Tribunal on the basis of the pleadings,
oral and documentary evidence on record held that
the accident occurred due to the rash and negligent
driving of the KSRTC bus bearing registration No.KA-
32/F-2317 and not due to the rash and negligent
riding of the motorcycle and awarded compensation of
Rs.17,83,600/- with interest at the rate of 6% per
annum from the date of filing of the petition till the
date of realization under the following heads:
Loss of dependency Rs.17,13,600/-
Towards funeral expenses Rs.15,000/-
Loss of estate Rs.15,000/-
Consortium to the petitioner No.1 Rs.40,000/-
Total Rs.17,83,600/-
11. Being unsatisfied with the amount of
compensation awarded by the Tribunal, the claimants
have preferred MFA.No.200382/2021 seeking
enhancement of compensation and
MFA.No.200465/2021 is preferred by the KSRTC bus
on the ground of fastening of liability upon the KSRTC
and on the ground that the award of compensation is
on the higher side.
12. Heard learned counsel for the appellant and
the learned counsel for the respondents.
13. Learned counsel for the appellant/KSRTC
would contend that the fastening of liability upon the
KSRTC is without considering the fact that the
deceased was riding the motorcycle in a rash and
negligent manner and it has dashed against the
KSRTC bus which was coming in the opposite direction
and that there is contributory negligence on the part
of the deceased in causing the road traffic accident. It
is further contended that the driver of the bus was
driving the bus in the right direction, whereas the
rider of the motorcycle was coming in a wrong side,
due to which the accident occurred. It is further
contended that the award of compensation,
considering the income of the deceased as Rs.9,000/-
per month is much on the higher side and thus sought
to allow the appeal by the KSRTC.
14. Per contra, Sri Basavaraj.R.Math, learned
counsel for the claimants would contend that fastening
of liability upon the KSRTC was due to the rash and
negligent driving of the driver of the bus has been
rightly considered by the Tribunal on the basis of the
evidence and material on record and the same does
not call for any interference and insofar as the award
of compensation is concerned, it is contended that the
Tribunal has erroneously taken the income of the
deceased at Rs.9,000/-, whereas he was a carpenter
and was earning Rs.15,000/- per month and as per
the chart of the Lok-Adalat, the notional income
arrived at by the Tribunal is also on the lower side. It
is further contended that the award of compensation
under the head of loss of consortium and conventional
head is not as per the judgment of the Hon'ble Apex
Court.
15. Having heard learned counsel for the
parties and in view of the rival contentions of the
parties, the points that arise for consideration are as
under:
(i) Whether the judgment and award
passed by the Tribunal insofar as
fastening of liability on the KSRTC due
to the rash and negligent driving of the
driver of the KSRTC bus is justifiable?
(ii) Whether the award of compensation by
the Tribunal requires any interference
in so far as quantum is concerned?
Point No.1:
16. It is the contention of the learned counsel
for the KSRTC that the contributory negligence by the
deceased in causing the road traffic accident has not
been rightly considered by tribunal. A perusal of
Ex.P-3, the spot panchnama; Ex.P-4 inquest
panchnama, Ex.P-5 IMV report, Ex.P-6 and Ex.P-7 the
charge sheet clearly indicate that the KSRTC bus was
proceeding from Lingasugur bye-pass road towards
Kasaba Lingasugur Road at a high speed and in a rash
and negligent manner and dashed against the
motorcycle of the deceased and due to the impact of
the accident, the deceased succumbed to the injuries.
As per the panchnama and the sketch, the driver of
the bus was driving the bus bearing registration
No.KA-32/F-2317 from north-south direction and the
deceased was riding the motorcycle from south-north,
wherein there was a curving road which is the
accident spot on the western edge of the road.
According to the claimant, the deceased/husband was
riding the motorcycle from Kasaba towards Lingasugur
on the left side and the accident occurred on the
western edge of the road which clearly indicates that
the accident occurred due to the rash and negligent
driving of the KSRTC bus. Even in the objections of
respondent No.2/KSRTC, it is only contended that the
deceased was rash and negligent in riding the vehicle,
due to which he lost control and fell from the
motorcycle. It is nowhere specifically pleaded that
due to the rash and negligent riding of the deceased,
the motorcycle dashed against the KSRTC bus. Thus,
the contributory negligence as contended by the
learned counsel for the KSRTC is not justifiable and
when the respondent having failed to adduce any
rebuttal evidence to establish the fact that the
accident occurred on account of rash and negligent
riding of the deceased. Thus, we of the considered
opinion that the finding of the Tribunal with regard to
the alleged contributory negligence by the deceased is
correct and proper, particularly when the
respondent/KSRTC has not adduced any rebuttal
evidence to establish that the accident occurred on
account of rash and negligent riding by the deceased
and also the charge sheet is filed against the driver of
the bus. Thus, the contention of KSRTC regarding
contributory negligence by the deceased cannot be
accepted for the reasons stated supra, point No.1
framed for consideration is answered in the
affirmative.
Point No.2:
17. Insofar as the quantum of compensation is
concerned, the Tribunal has awarded a sum of
Rs.17,83,600/-. While awarding compensation under
the head loss of dependency, the Tribunal has taken
the income of deceased at Rs.9,000/- per month.
Even assuming that the claimants have failed to
produce any documentary evidence to show the actual
income of the deceased as per the Karnataka Legal
Services Guidelines for the accidents that occurred in
the year 2019, the notional income to be taken by the
deceased is Rs.13,250/-. Taking into consideration
the total income of the deceased as Rs.13,250/-
adding 40% i.e., Rs.5,300/- as per the dictum of the
Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Sethi
[(2017) 16 SCC 680], it amounts to Rs.18,550/-
(13,250 + 5,300 (40%) = 18,550) and deducting
1/4th towards personal expenses and applying
multiplier of 17 considering the age of the deceased
as 29 years, the total amount of compensation under
the head loss of dependency comes to Rs.18,550 x 12
x 17 x ¾ which comes to Rs.28,38,150/-. In view of
the dictum in the case of United India Insurance
Company Limited vs. Satinder Kaur and others
[(2020) ACJ 3076] and Magma General
Insurance Company Limited vs. Nanu Ram
[(2018)18 SCC 130), the dependents of the
deceased are wife, child and parents who are four in
number, a sum of Rs.40,000/- each is awarded and
the same would amount to Rs.1,60,000/- (Rs.40,000
x 4) is awarded under the head loss of love and
affection/consortium. Under the head funeral
expenses and loss to estate a sum of Rs.15,000/-
each would come to Rs.30,000/-, the claimants are
entitled to a sum of Rs.1,90,000/-. Thus, the
claimants are entitled to total compensation of
Rs.30,28,252/- under the following heads:
Loss of dependency : Rs.28,38,150/-
Funeral expenses : Rs.15,000/-
Loss of estate : Rs.15,000/-
Loss of love and affection/ : Rs. 1,60,000/-
Consortium
-----------------
TOTAL : Rs. 30,28,150/-
18. The Tribunal has already awarded a sum of
Rs.17,83,600/- after deducting the same out of
enhanced compensation of Rs.30,28,150/-, the
claimant is entitled to Rs.12,44,552/- (30,32,150 less
17,83,600) with interest at the rate of 6% per annum
from the date of claim petition till the date of
realization. As a result, point No.2 is answered in the
affirmative.
19. For the reasons stated supra, we pass the
following:
ORDER
(i) The appeal filed by the KSRTC in
MFA.No.20465/2021 is hereby dismissed.
(ii) The appeal filed by the claimants in
MFA.No.20382/2021 is hereby partly
allowed awarding enhanced compensation
of Rs.12,44,552/- with interest at the rate
of 6% per annum from the date of petition
till the date of realization.
(iii) The impugned judgment and award dated
20/11/2021 passed in MVC.No.247/2019
on the file of the Tribunal is hereby
modified insofar as the award of
compensation is concerned.
(iv) The amount in deposit, if any, is directed to
be transmitted to the Tribunal for
disbursement.
(v) The trial Court record to be transmitted to
the trial Court forthwith.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
