Smt. Ameenabee And Ors vs The Northeastern Karnataka Road ...
2022 Latest Caselaw 2032 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 9TH 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.202108/2019 (MV)

BETWEEN:
1.    Smt. Ameenabee W/o Late Khajamiyan,
      Age: 24 years, Occ: Household,

2.    Noor Jahan D/o Chunnumiyan,
      Age: 24 years, Occ: Household,

3.    Chunnumiyan S/o Khandarsab,
      Age: 58 years, Occ: Household,

4.    Mehrunbee W/o Chunnumiyan,
      Age: 49 years, Occ: Household,

5.    Baby Kousar D/o late Khajamiyan,
      Age: 6 years, Minor, U/G of her
      Mother appellant No.1.

      All R/o Karanji (B), Tq: Aurad,
      Dist: Bidar, now residing at
      Nandi Colony, Bidar.
                                            ... Appellants
(By Sri Santosh Biradar, Advocate)
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AND:

The Northeastern Karnataka Road,
Transport Corporation,
Bidar Division, Bidar-585401.
Rep. by its Divisional Manager.
                                             ... Respondent
(By Sri.Sharanabasappa.M.Patil, Advocate)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the
appeal, modify the impugned judgment and award dated
17.02.2018 passed by the court of Addl. MACT and Prl.
Senior Civil Judge and CJM at Bidar, in MVC No.536/2015,
and enhance the compensation as prayed for by fixing the
entire liability on the respondent corporation and allot the
shares equally among all the appellants.

      This appeal coming on for admission this day,
K.S. Hemalekha J, delivered the following:

                       JUDGMENT

Though the matter is listed for admission, with

the consent of learned counsel for the parties, the

same is taken up for final disposal.

2. The present appeal is preferred by the

claimants/Ameenabee and others assailing the

judgment and award dated 17.02.2018 in

MVC.No.536/2015 on the file of the Additional MACT &

Principal Senior Civil Judge & CJM, Bidar, seeking

enhancement of compensation.

3. The claim petition is filed under Section

166 of the Motor Vehicles Act, 1988 ("the Act" for

short) seeking compensation of Rs.45,30,000/- with

interest at the rate of 12% per annum on account of

death of one Khaja Miyan son of Chunnu Miyan who

succumbed to the injuries sustained in a road traffic

accident on 08/12/2014. When the deceased was

proceeding to Hyderabad along with one Vithal Reddy,

a North East Karnataka Road Transport Corporation

(hereinafter referred to as "the Corporation" for the

sake of brevity) bus bearing registration No.

KA-38/F-600 came in a rash and negligent manner

and dashed against Khaja Miyan the deceased, due to

which he fell down on the road and the rear wheel of

the bus passed over his abdomen. The deceased

sustained grievous injuries and he succumbed to the

injuries on the next day during the treatment.

4. The claimants are the wife, sister, parents

and child of the deceased. The deceased was a

plastering contractor at Hyderabad and was earning

Rs.30,000/- per month. The claimants were solely

depending upon the income of the deceased and was

the sole bread winner f the family.

5. In pursuance of the notice issued by the

Tribunal, respondent/insurance company appeared

and filed its written statement.

6. Respondent/Corporation denied the

contents of the claim petition and denied that the

deceased succumbed to the injuries due to the road

traffic accident that occurred on 08.12.2014 due to

the rash and negligent driving by the driver of the

bus. The Corporation also denied that the claimants

are the dependents of the deceased. It is also

contended that the accident took place due to the sole

negligence of the deceased.

7. The Tribunal, on the basis of the rival

pleadings of the parties, framed the following:

ISSUES

1. Whether the petitioner proves that on 08.12.2014 at 6-30 pm on APMC Cross Aurad, when petitioner was getting into the NEKRTC Bus bearing registered No.KA-38/F-600 the driver of the said bus driven it in a rash and negligent manner due to a rash and negligent manner due to which he fell on the road and rear wheel passed over his abdomen and he sustained grievous injury and died?

2. Whether the petitioner is entitled for compensation as claimed? If so, to what amount and from whom?

3. What Order or Award?

8. In order to substantiate their claim,

claimant No.1/wife of the deceased examined herself

as PW.1 and an eyewitness as PW.2 and got marked 7

documents at Exs.P-1 to P-7. On behalf of the

respondents, the respondent examined the officer of

the insurance company as RW.1 and relied on Ex.R-1.

9. The Tribunal, on the basis of the pleadings,

evidence and material on record held that there was

contributory negligence on the part of the deceased

and the driver of the Corporation/NEKRTC bus bearing

registration No.KA-38/F-600 to extent of ratio of

25:75 holding that the Corporation is liable to pay

compensation to the extent of 75% to the claimants

and awarded compensation of Rs.10,87,551/-

directing the Corporation to pay compensation with

interest at the rate of 6% per annum from the date of

claim petition till the date of realization.

10. Being aggrieved by the fastening of

contributory negligence on the deceased t the extent

of 25% and the quantum of compensation awarded

by the Tribunal, the claimants are in appeal.

11. Heard learned counsel for the

appellants/claimants and learned counsel for the

respondents.

12. Learned counsel Sri Babu H. Metagudda,

appearing for the appellants would contend that the

police records and the final charge sheet is filed

against the driver of the bus and thus, attributing

25% negligence on the part of the deceased by the

Tribunal is incorrect and thus, sought to absolve the

liability to the extent of 25% as contributory

negligence on the deceased. Insofar as quantum of

compensation is concerned, it is contended that the

Tribunal has not awarded any compensation under the

head future prospects and as could be awarded in the

case of a death under the head loss of dependency,

the personal expenses deducted by the Tribunal is

1/4th instead of 1/6th which is as per the dictum of the

Hon'ble Apex Court and on this ground, they sought to

enhance the compensation.

13. Per contra, learned counsel, Sri

Sharanabasappa M.Patil, appearing for the

respondent/Corporation would contend that the

Tribunal, considering negligence on the part of the

deceased, has attributed 25% as contributory

negligence on the deceased and awarded

compensation of Rs.10,87,551/- with interest at the

rate of 6% per annum based on the dictum of the

Apex Court and hence, contended that the award of

compensation is just, fair and proper and does not call

for any interference at the hands of this Court.

14. Having heard learned counsel for the

parties, and having given our anxious consideration to

the rival contentions and having perused the material

on record, the only points that arise for our

consideration is:

(i) Whether the Tribunal was justified in fastening the contributory negligence to the extent of 25% upon the deceased?

(ii) Whether the judgment and award passed by the Tribunal requires any interference?

Point No.1:

15. Perusal of the police records and the final

charge sheet clearly establish the fact that the driver

of the Corporation/NEKRTC bus was charge sheeted

and a criminal case was registered against the driver

of the bus. Though the insurance company in the

objections has contended that the accident occurred

due to the sole negligence of the deceased, the cross-

examination of PW.1 would depict that the

Corporation went to the extent of suggesting that the

deceased had consumed liquor and while getting into

the bus, he lost balance and fell on the road and due

to which the accident occurred. But such a suggestion

was put forth to PW.1 is not found in the written

statement of the Corporation. Thus, what could be

gathered from the evidence and material on record is

that the Corporation though tried to put up a stand

that the accident had occurred due to the sole

negligence on the part of the deceased, looking into

the documents produced at Exs.P-1 to P-7 which

would clearly establish that the accident has not

occurred due to the sole negligence on the part of the

deceased.

16. The Corporation also failed to establish on

behalf of itself or the driver of the vehicle by adducing

any evidence to the extent of showing that the

accident occurred due to the fall by the deceased in an

intoxicated condition when he went to climb the bus.

Thus, the Corporation having failed to establish this

fact, the Tribunal was not justified in fastening the

liability of the contributory negligence to the extent of

25% upon the deceased. Thus, in our considered

view, the Tribunal was not justified in holding that

there is contributory negligence on the part of the

deceased to the extent of 25% and hence, the

fastening of negligence attributed on the deceased is

absolved fastening the entire liability upon the

Corporation and accordingly, we answer point No.1 in

the affirmative against the Corporation.

Point No.2:

17. Insofar as the award of compensation is

concerned, the Tribunal has taken the income of the

deceased at Rs.10,000/- and the same has not been

challenged by the Corporation. This being so, taking

the income of the deceased at Rs.10,000/- and adding

40% to it, a sum of Rs.14,000/- is awarded towards

future prospects. (10,000/- + 40% i.e.,4,000 =

14,000/-) in view of the dictum of the Hon'ble

Supreme Court in the case of National Insurance

Company Limited vs. Pranay Sethi [(2017)16

SCC 680] (Pranay Sethi) and deducting 1/4th towards

the personal expenses of the deceased and applying

the multiplier 18 considering the age of the deceased

between 21 to 25 years, the amount of compensation

under the head loss of dependency would come to

Rs.22,68,000/- (Rs.14,000 x 12 x 18 x 2/4).

18. In view of United India Insurance

Company Limited vs. Satinder Kaur and others

[(2020) ACJ 3076] (Satinder Kaur) and Magma

General Insurance Company Limited vs. Nanu

Ram [(2018) 18 SCC 130] (Magma General

Insurance Company Limited), the dependents being

five in number are entitled to a sum of

(Rs.40,000/- each) i.e, Rs.2,00,000/- under the

head loss of spousal and parental consortium. Under

the head loss of estate, the claimants are entitled to

Rs.15,000/- and under the head funeral and

obsequies ceremony the claimants are entitled to

Rs.15,000/-, which comes to Rs.30,000/-. The total

compensation which the claimants are entitled to is

under the following heads:

1. Loss of dependency Rs.22,68,000/-

2. Loss of consortium Rs.2,00,000/-

   3.     Loss of estate                         Rs.15,000/-
   4.     Funeral      &     obsequies           Rs.15,000/-
          ceremony
                           Total            Rs.24,98,000/-

19. The Tribunal has already awarded a sum of

Rs.10,87,551/- in the claim petition and after

deducting the same from the compensation awarded

in this Court i.e., Rs.24,98,000/-, it would come to

Rs.14,10,449/-. Hence, the claimants are entitled

for an enhanced compensation of Rs.14,10,449/-

with interest at the rate of 6% per annum from the

date of petition till the date of realization.

20. In the result, we pass the following:

ORDER

(i) The appeal is allowed in part.

   (ii)        The Corporation is directed to pay the

               enhanced              compensation            of

Rs.14,10,449/- with interest at 6% per

annum from the date of the petition till

realization within 12 weeks from the date

of receipt of certified copy of this order.

(iii) The impugned judgment and award dated

17/02/2018 in MVC.No.536/2015 on the

file of the Tribunal is hereby modified to

the extent of enhanced compensation

stated above.

(iv) The contributory negligence to the extent

of 25% on the deceased is hereby absolved

attributing 100% negligence on the

Corporation.

(v) The apportionment, release and deposit are

as per the order of the Tribunal.

(vi) The registry is directed to transmit the trial

Court records forthwith.

(vii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

S*