Karnataka High Court

The Divisional Manager vs Sri. Fakkirappa S/O. Chandappa ... on 17 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

              IN THE HIGH COURT OF KARNATAKA,
                       DHARWAD BENCH

           DATED THIS THE 17TH DAY OF JANUARY 2022

                            PRESENT

             THE HON'BLE MR. JUSTICE S.G. PANDIT
                             AND
       THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 M.F.A. No. 101209/2017 C/W
             M.F.A. CR. OB. NO. 100004/2020 (MV)

IN M.F.A. NO. 101209/2017

BETWEEN:

THE DIVISIONAL MANAGER,
N.W.K.R.T.C, GADAG DIVISION, GADAG.
                                               -     APPELLANT
(BY SRI. S.L. MATTI, ADVOCATE)

AND:

1.     SRI FAKKIRAPPA S/O CHANDAPPA LAMANI,
       AGE: 44 YEARS, OCC: NIL.

2.     SRI. CHANDAPPA S/O FAKKIRAPPA LAMANI,
       AGE: 13 YEARS, OCC: STUDENT.

3.    SANGEETA D/O FAKKIRAPPA LAMANI,
      AGE: 11 YEARS, OCC.: STUDENT.
SINCE APPELLANT NO. 2 & 3 ARE MINORS
R/BY THEIR FATHER MINOR GUARDIAN
SRI FAKKIRAPPA S/O CHANDAPPA LAMANI,
ALL ARE R/O : HESARUR, TQ: SAVANUR,
DIST: HAVERI, NOW RESIDING AT
GANDHINAGAR, BYADAGI.
                                       -           RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
                                  2



      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD PASSED
BY THE LEARNED SR. CIVIL JUDGE & JMFC, BYADAGI IN M.V.C. NO.
121/2015 DATED 16.12.2016 & ETC.

IN M.F.A. CR. OB. NO. 100004/2020

BETWEEN:

1.     SRI FAKIRAPPA S/O CHANDAPPA LAMANI,
       AGE; 47 YEARS, OCC; NIL.

2.     MINOR CHANDAPPA S/O FAKIRAPPA LAMANI,
       AGE: 16 YEARS, OCC: STUDENT.

3.     MINOR SANGEETA S/O FAKKIRAPPA LAMANI,
       AGE: 14 YEARS, OCC: STUDENT.

THE CROSS APPELLANT NO. 2 AND 3 ARE MINORS,
REPRESENTED BY THEIR NATURAL GUARDIAN AND
FATHER CROSS APPELLANT NO.1 SRI FAKIRAPPA,
S/O CHANDAPPA LAMANI, AGE: 47 YEARS, OCC: NIL,
R/O HESARUR, TQ: SAVANUR, DIST: HAVERI.
ALL ARE R/O HESARUR, TQ: SAVANUR,
DIST: HAVERI-581 118.
                                      -     CROSS OBJECTORS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

AND:

THE DIVISIONAL MANAGER,
NWKRTC GADAG DIVISION,
GADAG-582 101.
                                             -   RESPONDENT
(BY SRI. S.L. MATTI, ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS
FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT
AND AWARD PASSED BY THE LEARNED SR. CIVIL JUDGE & JMFC,
BYADAGI IN M.V.C. NO. 121/2015 DATED 16.12.2016 & ETC.
                                 3



      THIS MISCELLANEOUS FIRST APPEAL AND MISCELLANEOUS
FIRST APPEAL CROSS OBJECTION COMING ON FOR ADMISSION THIS
DAY, S.G. PANDIT J., DELIVERED THE FOLLOWING:

                           JUDGMENT

Even though the matters are listed for admission, with

consent they are taken up for final disposal.

2. The respondent-NWKRTC is in appeal challenging liability

as well as quantum of compensation awarded and the claimants-

cross objectors are before this Court seeking for enhancement of

compensation granted under the impugned judgment and award

dated 16.12.2016 passed in M.V.C. No. 121/2015 by the learned

Senior Civil Judge and JMFC, Byadgi (for short 'the Tribunal').

3. Claimants are the husband and children of deceased

Tirukavva, who was aged 40 years as on the date of accident.

The claimants filed claim petition under Section 166 of the Motor

Vehicles Act, 1988 (for short 'the Act') seeking compensation for

the accidental death of Tirukavva that occurred on 22.08.2014

involving TATA ACE vehicle bearing reg. no. KA-25/B-7920 AND

NWKRTC bus bearing No. KA-26-F-520. It is stated that the

deceased was earning `20,000/- per month by doing coolie work

and all the claimants were dependent on her income.

4. The respondent NWKRTC filed its objections contending

that the accident occurred due to the negligence of the driver of

the TATA ACE vehicle who had no valid and effective driving

licence. The Tribunal based on the material and evidence on

record awarded compensation of `16,30,000/- on the following

heads.

     Sl. No.    Particulars                      Amount in Rs.
     1.         Loss of dependency                10,80,000.00
     2.         Loss of consortium                   50,000.00
     3.         Transport and funeral expenses       30,000.00
     4.         Loss of estate                     2,70,000.00
     5.         Love and affection                 2,00,000.00
                Total                             16,30,000.00

While awarding the above compensation, the Tribunal assessed

income of the deceased at `6,000/- per month, added 50%

towards future prospects, awarded `2,70,000/- towards loss of

estate, and `2,70,000/- towards loss of love & affection.

Challenging the quantum as well as liability the respondent-

NWKRTC is in appeal and the claimants are in cross objections

praying for enhancement of compensation.

5. The accident that occurred on 22.08.2014 involving TATA

ACE vehicle bearing reg. no. KA-25/B-7920 AND NWKRTC bus

bearing No. KA-26-F-520 and the accidental death of Tirukavva

is not in dispute in this appeal.

6. Learned counsel for the Corporation contended that the

Tribunal failed to consider the contributory negligence of the

driver of the TATA ACE vehicle who also contributed to the

occurrence of the accident. Further, the Tribunal committed

grave error in adding 50% of the assessed income towards

future prospects whereas they are entitled for 25% as the

deceased was aged 40 years in terms of National Insurance

Company limited V. Pranay Sethi and others (AIR 2017 SC

5157). It is also pointed out that the compensation granted on

the head of loss of estate and loss of consortium and towards

love & affection is on the higher side as compared to the

compensation awarded in Pranay Sethi supra. Thus, he prays

for allowing the appeal.

7. Learned counsel for the claimants submits that the income

assessed by the Tribunal at the rate of `6,000/- per month is on

the lower side and the income ought to be assessed at `7,500/-

per month; as the deceased was aged 40 years claimants are

entitled for adding 25% of the assessed income towards future

prospects. In view of the decision of the apex Court in Magma

General Insurance Co. Ltd. V. Nanu Ram and Others (2018

ACJ 2782) case the claimants No.2 and 3 would be entitled for

parental consortium at `40,000/- each. Thus, prays for

enhancement of compensation.

8. Learned counsel for the corporation contended that the

Tribunal failed to consider the contributory negligence of the

driver of the TATA ACE vehicle. However, it is stated that the

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

Tribunal on appreciation of the evidence of PW1 to PW19 and

Ex.P.1 to P.17 has rightly come to the conclusion that the

accident has occurred solely on account of rash and negligent

driving of the bus. It is also to be noted that there is no contra

evidence on record nor anything is elicited in the evidence of

PW1 to support the contention of the respondent-Corporation to

substantiate its contention that the driver of the TATA ACE

vehicle contributed his negligence towards the accident. Thus

the finding arrived by the Tribunal that the accident occurred

solely due to the negligence of the driver of the bus is proper

and needs no interference.

9. The income assessed by the Tribunal at `6,000/- per

month is on the lower side as the accident is of the year 2014.

This Court and the Lok adalath while settling the accidental

claims of the year 2014 would normally assess income of the

deceased/ victims at `7,500/- per month based on the Chart

prepared by the Karnataka State Legal Services Authority, which

is prepared on considering various factors including Minimum

Wages. Thus, it would be appropriate to assess income of the

deceased at `7,500/- per month. Admittedly, deceased was

aged 40 years. In Pranay Sethi, it is held, wherever the

deceased was aged between 40-50 years, the claimants would

be entitled for adding 25% of the assessed income towards

future prospects. Claimant No.1 is the husband and claimants

No.2 and 3 are children of the deceased. Claimant no.1 is

entitled for `40,000/- towards spousal consortium apart from

`15,000/- towards loss of estate and `15,000/- towards

transportation and funeral expenses. Claimants No.2 and 3

being the children of the deceased would be entitled for parental

consortium at `40,000/- each in terms of Magma case. The

compensation awarded by the Tribunal on the head of loss of

estate and love and affection is on the higher side and is not in

terms of Pranay Sethi supra. Deduction of 1/3rd towards

personal expenses of the deceased is proper and correct. Thus,

the claimants would be entitled for modified compensation as

under:

  Sl. No.   Particulars                                     Amount `
  1.        Loss of dependency                          11,25,000.00
            (`7,500/- +25% - 1/3 x 12 x 15)
  2.        Loss of consortium to 1st claimant             40,000.00
  3.        Loss of consortium to 2nd and 3rd              80,000.00
            claimant
  4.        Loss of estate                                 15,000.00
  5.        Transportation and funeral expenses            15,000.00
            Total                                       12,75,000.00

10. Thus the claimants are entitled to a total compensation of

*`12,75,000/- as against `16,30,000/- awarded by the Tribunal

with interest at 6% p.a. from the date of petition till payment.

The order of the Tribunal as regards the ratio of apportionment

of the compensation amongst the claimants is not disturbed.

*Corrected vide Court Order dated 16.2.2022.

Sd/-

(SGPJ)

For the foregoing reasons, the appeal and the cross

objections are allowed in part.

The appellant-Corporation shall deposit the entire

compensation amount with interest at 6% p.a. from the date of