The Managing Director vs Sri Mohammed Khasim @ Khasim
2022 Latest Caselaw 10777 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JULY 2022

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.3518 OF 2019(MV)
                   C/W
          MFA No.3519 OF 2019(MV)


IN MFA No.3518/2019
BETWEEN:

THE MANAGING DIRECTOR
KSRTC DIVISION
K.H.ROAD, SHANTHINAGAR
BENGALURU - 560 027
NOW THROUGH CHIE LAW OFICER
KSRTC BANGALORE.
                                     ...APPELLANT
(BY SRI. NAGARAJA K., ADV.)

AND:

1.     SRI MOHAMMED KHASIM
       @ KHASIM
       S/O SARVAR SAB
       AGED ABOUT 54 YEARS

2.     SMT. MAMTHAZ
       @ MUMTHAJ
       W/O MOHAMMED KHASIM
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     @ KHASIM
     AGED ABOUT 47 YEARS

     BOTH ARE R/O NO.429
     14TH CROSS, 7TH MAIN
     KAVERINAGAR
     BANASHANKARI 2ND STAGE
     BANGALORE - 560 070.
                                 ...RESPONDENTS
(BY SRI.K.S. ANANDA, ADV. FOR R1 & R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:27.09.2018 PASSED IN MVC NO.5450/2017
ON THE FILE OF THE II ADDITIONAL JUDGE AND
XXVIII ACMM, COURT OF ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL,    BENGALURU(SCCH-13),     AWARDING
COMPENSATION OF RS.5,00,006/- WITH INTEREST AT
6% P.A. FROM THE DATE OF PETITION TILL THE
DEPOSIT OF THE AMOUNT IN THE TRIBUNAL.

IN MFA No.3519/2019
BETWEEN:

THE MANAGING DIRECTOR
KSRTC DIVISION
K.H.ROAD, SHANTHINAGAR
BENGALURU - 560 027
NOW THROUGH CHIE LAW OFICER
KSRTC BANGALORE.
                                    ...APPELLANT
(BY SRI. NAGARAJA K., ADV.)
                        3



AND:

1.     SRI PEER PASHA
       S/O MOHAMMED DASTAGIR
       AGED ABOUT 55 YEARS

2.     SMT. NAHIMA JHON
       W/O PEER PASHA
       AGED ABOUT 52 YEARS

       BOTH ARE R/O NO.70
       1ST CROSS MASIDI ROAD
       SANBANDE PALYA
       BANASHANKARI 2ND STAGE
       BANGALORE - 560 070.
                                 ...RESPONDENTS
(BY SRI.K.S. ANANDA, ADV. FOR R1 & R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:27.09.2018 PASSED IN MVC NO.5451/2017
ON THE FILE OF THE II ADDITIONAL JUDGE AND
XXVIII ACMM, COURT OF ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL,    BENGALURU(SCCH-13),     AWARDING
COMPENSATION OF RS.5,00,006/- WITH INTEREST AT
6% P.A. FROM THE DATE OF PETITION TILL THE
DEPOSIT OF THE AMOUNT IN THE TRIBUNAL.

     THESE MFAs COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                   COMMON JUDGMENT

        These appeals under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) have been filed by the Corporation being

aggrieved by the judgment dated 27.09.2018 passed

by the II Additional Judge & XXVIII ACMM Court of

Small Causes, Bengaluru in MVC Nos.5450/2017 and

5451/2017, respectively.


        2.    Facts

giving rise to the filing of the appeals

briefly stated are that on 18.08.2017 at about 10.00

p.m., deceased-Mohamed Zabiulla in MVC

No.5450/2017 and deceased-Nazil Pasha in MVC

No.5451/2017 were proceeding on Harohalli Tank

Bund road cross in a Mahindra Ventro Car bearing

Registration No.Ka-05-AF-4758, at that time, the

driver of the KSRTC Bus bearing Registration No.KA-

42-F-239 drove the same in high speed and in a rash

and negligent manner and dashed against the vehicle

of the deceased. As a result of the aforesaid accident,

the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimants filed a petition under Section

163A of the Act seeking compensation for the death of

both deceased along with interest.

4. On service of summons, the respondent

has appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, occupation and income

of the deceased are denied. It was further pleaded

that the quantum of compensation claimed by the

claimants is exorbitant. Hence, he sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, claimant No.1 in MVC No.5450/2017

was examined as PW-1 and claimant No.1 in MVC

No.5451/2017 was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P18. On

behalf of respondents, one witness was examined as

RW-1 but no documents were marked. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the deceased sustained injuries

and succumbed to the injuries. The Tribunal further

held that both claimants in MVC Nos.5450/2017 and

5451/2017 are entitled to a compensation of

Rs.5,00,006/- each along with interest at the rate of

6% p.a. and directed the Corporation to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed by the

Corporation.

6. The learned counsel for the Corporation has

raised the following contentions:

Firstly, the accident occurred due to negligence

of driver of the Mahindra Ventro Car bearing

Registration No.KA-05-AF-4758. But the Tribunal

considering the FIR as per Ex.P1, complaint as per

Ex.P2, Spot Panchanama as per Ex.P3, spot sketch as

per Ex.P4, Inquest report as per Ex.P5 and PM report

as per Ex.P6, was not justified in fastening the liability

on the Corporation.

Secondly, the Tribunal without impleading the

driver and owner of the Mahindra Ventro Car, has

allowed the claim petitions and fastened the liability

on the Corporation.

Thirdly, considering the oral and documentary

evidence, age and avocation of both the deceased, the

overall compensation awarded by the Tribunal is on

higher side. Hence, he prays for allowing the appeals

filed by the Corporation.

7. On the other hand, the learned counsel for

the claimants has raised the following counter-

contentions:

Firstly, the claim petitions have been filed under

Section 163A of the Act. In view of the law laid down

by the Hon'ble Apex Court in the case of UNITED

INDIA INSURANCE COMPANY LTD. -V- SUNIL

KUMAR AND ANOTHER reported in AIR 2017 SC

5710, it is not open for the Insurer to raise any

defence of negligence on the part of the victim.

Therefore, the Tribunal has rightly entertained the

claim petitions and granted compensation.

Secondly, since the claim petitions have filed

under Section 163A of the Act, the compensation has

been awarded as per Schedule II of Section 163A of

the Act. Hence, he sought for dismissal of the appeals.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that deceased-Mohamed

Zabiulla and deceased-Nazil Pasha died in the road

traffic accident occurred due to rash and negligent

driving of the driver of the KSRTC Bus bearing

Registration No.KA-42-F-239.

The claim petitions have been filed by the legal

representatives of both the deceased under Section

163A of the Act against the KSRTC. Since the claim

petitions have been filed under Section 163A of the

Act, the Hon'ble Apex Court in the case of 'SUNIL

KUMAR' (supra) has held that it is not open for the

Insurer to raise any defence of negligence on the part

of the victim. Therefore, the Tribunal has rightly

directed the Corporation to pay the compensation.

Since the claim petitions have been filed under

Section 163A of the Act, the Tribunal has assessed the

loss of dependency as per Schedule II of Section 163A

of the Act.

In respect of other incidental expenses is

concerned, the claimants in both the appeals are

entitled to Rs.2,000/- each for 'funeral expenses' and

Rs.2,500/- each for 'loss of estate' and total

compensation of Rs.4,500/- each under the

conventional heads. But the Tribunal has awarded

Rs.10,000/- each and the same may be reduced to

Rs.4,500/- each.

Since the claimants in both the appeals are

parents of the deceased, they are not entitled for the

compensation under the head of 'loss of consortium'.

10. In the result, the appeals are allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants in both the appeals are entitled to

a total compensation of Rs.4,84,506/- each as

against Rs.5,00,006/- each awarded by the Tribunal.

The Corporation is directed to deposit the

compensation amount along with interest at 6% p.a.

from the date of filing of the claim petition till the date

of realization, within a period of six weeks from the

date of receipt of copy of this judgment.

In view of the disposal of the main appeals, all

pending IAs. do not survive for consideration and the

same are also disposed of.

Sd/-

JUDGE

HA/-