The Divisional Controller vs Basalingappa S/O Basappa ...
2022 Latest Caselaw 3549 Kant

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           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 03RD DAY OF MARCH, 2022
                         PRESENT
     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                            AND
       THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
               M.F.A NO.101512/2019 C/W
                 M.F.A. NO.103695/2019
M.F.A NO.101512/2019

BETWEEN:
1.     THE DIVISIONAL CONTROLLER
       NWKRTC, CHIKKODI,
       AT: CHIKKODI, DIST:BELAGAVI,
       REP. BY DULY CONSTITUTED AUTHORITY
       AND CHIEF LAW OFFICER,
       NWKRTC CENTRAL OFFICE, HUBBALLI.
                                                 ....APPELLANT
(BY SRI.M. K. SOUDAGAR, ADVOCATE)
AND:
1.     BASALINGAPPA S/O.BASAPPA TELAGADE,
       AGE:55 YEARS, OCC: AGRICULTURE,
       R/O:BEERANAGADDI, TAL:GOKAK-591 218.

2.     SMT. BASAWWA W/O.BASALINGAPPA TELAGADE,
       AGE:50 YEARS, OCC: AGRICULTURE,
       R/O:BEERANAGADDI, TAL:GOKAK-591 218.

3.     SHIVANAND S/O.BASALINGAPPA TELAGADE,
       AGE:25 YEARS, OCC: STUDENT,
       R/O:BEERANAGADDI, TAL:GOKAK-591 218.
4.     ASHOK S/O.BASALINGAPPA TELAGADE,
       AGE:23 YEARS, OCC: STUDENT,
       R/O:BEERANAGADDI, TAL:GOKAK-591 218.
5.     MANJUNATH S/O.NAGAPPA HAVALKOD,
       AGE:MAJOR, OCC: DRIVER,
       R/O:GODACHI, TAL:RAMDURG-591 123.
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                                              ....RESPONDENTS
(R1 TO R4 BY SRI.SANTOSH S. HATTIKATAGI, ADVOCATE)

       THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
19.01.2019 PASSED IN MVC NO.286/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, GOKAK, AWARDING COMPENSATION
OF Rs.21,97,000/- WITH INTEREST AT 9% P.A FROM THE DATE OF
PETITION TILL THE REALISATION.
M.F.A NO.103695/2019
BETWEEN:

1.     SHRI. BASALINGAPPA S/O. BASAPPA TELAGADE,
       AGE:50 YEARS, OCC: AGRICULTURE,
       R/O.BEERANAGADDI, TQ:GOKAK,
       DIST:BELAGAVI-593 107.
2.     SMT. BASAWWA W/O. BASALINGAPPA TELAGADE,
       AGE:50 YEARS, OCC: AGRICULTURE,
       R/O.BEERANAGADDI, TQ:GOKAK,
       DIST:BELAGAVI-593 107.

3.     SHRI. SHIVANAND S/O. BASALINGAPPA TELAGADE,
       AGE:20 YEARS, OCC: STUDENT,
       R/O.BEERANAGADDI, TQ:GOKAK,
       DIST:BELAGAVI-593 107.
4.     SHRI. ASHOK S/O. BASALINGAPPA TELAGADE,
       AGE:18 YEARS, OCC: STUDENT,
       R/O.BEERANAGADDI, TQ:GOKAK,
       DIST:BELAGAVI-593 107.
                                                   ....APPELLANTS
(BY SRI. SANTOSH S. HATTIKATAGI, ADVOCATE)

AND:
1.     SHRI. MANJUNATH S/O. NINGAPPA HAVALKOD,
       AGE:MAJOR, OCC: DRIVER,
       R/O:GODACHI, TAL:RAMADURGA,
       DIST: BELAGAVI-593 107.
2.     THE DIVISIONAL CONTROLLER,
       NWKRTC, CHIKODI,
       AT:CHIKODI, DIST: BELAGAVI-593 107.
                                              ....RESPONDENTS
(R2 BY SRI. M. K. SOUDAGAR, ADVOCATE)
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       THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
19.01.2019 PASSED IN MVC NO.286/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, GOKAK, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT TOF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY, K.S.
HEMALEKHA J., DELIVERED THE FOLLOWING:

                          JUDGMENT

Both the appeals are challenged against the

judgment and award dated 19.01.2019 in MVC

No.286/2015 on the file of II Additional Senior Civil Judge

and Additional MACT, Gokak (for short tribunal).

2. MFA No.101512/2019 is preferred by the

NWKRTC on the ground of liability and quantum of

compensation awarded by the Tribunal.

3. MFA No.103695/2019 is preferred by the

claimants seeking enhancement of compensation.

4. Parties are referred to as per their ranking

before the trial Court for sake of convenience.

5. The claim petition was filed under Section 166

of the Motor Vehicle Act, seeking compensation of

Rs.50,00,000/- with interest at the rate of 18% on account

of death of one Prakash who succumbed to the fatal road

traffic accident that occurred on 21.08.2014, when the

deceased was proceeding on his motorcycle bearing Regn.

No.KA-49/J-9892, the driver of the bus bearing Regn.

No.KA-42/F-591 came in a rash and negligent manner and

dashed against the motorcycle of the deceased, due to the

impact of the accident the deceased succumbed to the

injuries. The deceased was 25 years of age and was a MBA

graduate and at the time of the accident, the claimants are

the parents and brother of the deceased and it is

contended that they were depending on the deceased for

their livelihood. It is the contention of the claimants that

the deceased was earning Rs.35,000/- to 40,000/- per

month in a private company.

6. In pursuance of the notice issued by the

tribunal the respondents appeared. Respondent No.1 did

not file any objections. Respondent No.2 the NWKRTC filed

objections.

7. Respondent No.2 NWKRTC filed objections

contending that the accident occurred due to the

negligence on the part of the deceased who came from the

left side of the bus and tried to overtake the bus and

dashed against stationed motorcycle and due to which

deceased fell down and came under the wheel of the bus.

It is specifically denied by the NWKRTC that the accident

occurred due to the rash and negligent driving of the driver

of the bus.

8. The tribunal considering the pleadings of the

parties framed the following;

ISSUES

1. Whether the petitioners prove that on 21.08.2014 at about 11:30 a.m. near Koli circle, the driver of the bus bearing No.KA- 42/F-591 came from court circle by driving the said bus in rash and negligent manner and dashed to the motorcycle bearing No.KA-49/J-9892 rode by the deceased Prakash Telagade and due to the impact of said accident, Prakash Telagade sustained fatal injuries and died at the spot itself?

2. Whether the petitioners are entitled for any compensation? If so, at what rate?

3. What order or award?

ADDITIONAL ISSUES

1. Whether the respondent No.2 proves that deceased Prakash was riding motor cycle at high speed on the left side of bus and tried to overtake the bus and dashed against stationary motor cycle and fell down from the motor bike and contacted with the left side back wheel of bus and died due to his negligence?

2. Whether the respondent No.2 proves that the petitioners are not dependents of deceased Prakash?

9. In order to substantiate the case, the

claimants the mother and the brother of the deceased

examined themselves as PWs.1 and 4, 2 witnesses as

PWs.2 and 3 and got marked 34 documents as Ex.Ps1 to

34. On the other hand respondent No.1 the driver of the

NWKRTC bus examined himself as RW.1.

10. The Tribunal on the basis of the pleadings,

evidence and material evidence on record held that the

accident occurred due to the rash and negligent driving of

the bus driver bearing regn. No.KA-42/F-591 and also held

that the NWKRTC has failed to prove that the deceased

while driving the motorcycle has over took the bus and

dashed against the stationed motorcycle and fell down

from the motorbike. The tribunal holding this against the

NWKRTC fasten the liability and awarded the compensation

of Rs.21,97,000/- with interest at the rate of 9% per

annum from the date of petition till the date of realization.

11. Aggrieved by the fastening of liability on

ground of negligence upon the NWKRTC and award,

NWKRTC has preferred an appeal and on the ground of

quantum of compensation being on the lower side the

claimants have preferred this appeal.

12. Heard the learned counsel for appellants and

learned counsel for the respondent.

13. Learned counsel appearing for NWKRTC Sri. M.

K. Soudagar would contend that the accident occurred due

to the negligence on the part of the deceased as the

deceased attempted to over take the bus from the wrong

side and dashed against the one motorcycle which was

stationed and would contend that there was no negligence

on the part of the driver of the bus. It is further contended

that though the documents on record would clearly

establish the fact that the accident occurred due to the

negligence on the part of the motorcycle the Tribunal has

fastened the liability on the NWKRTC and thus would

contend that fastening of liability by the tribunal on the

NWKRTC need to be absolved. Insofar as quantum of

compensation awarded by the tribunal it is contended that

the income taken by the tribunal at Rs.15,000/- per month

is much on the higher side, in view of the fact that the

deceased was not employed as on the date of the accident.

It is further contended that the award of compensation by

the tribunal on the other heads is also on the higher side

and thus sought to reassess the compensation.

14. Per contra Sri. Santosh Hattikatagi learned

counsel for claimants would contend that the tribunal has

rightly held that there is no contributory negligence on the

part of the deceased and the tribunal was justified in

fastening the liability on the NWKRTC by holding that there

was rash and negligent driving by the driver of the bus.

Insofar as the quantum of compensation is concerned it is

contended that the tribunal has not awarded compensation

as per the dictum of Apex Court in the case of National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680, Satinder

Kaur @ Satwinder Kaur & Ors. V/s. United India

Insurance Co. Ltd. reported in AIR 2020 SC 3076

and Magma General Insurance Co. Ltd. V/s. Nanu

Ram reported in 2018 ACJ 2782.

15. It is also contended that the income assessed

by the tribunal at Rs.15,000/- per month is without

considering the documents produced by the claimants to

the effect that the deceased was to be appointed in Dalmia

Private Limited Company and the proposed salary was

Rs.6,45,912/- per year.

16. Having heard the learned counsel for the

parties and having perused the material on record the

points that arises for consideration are as under;

POINTS

1. Whether the tribunal is justified in fastening the liability upon the NWKRTC ?

2. Whether the judgment and award of the tribunal requires interference insofar as quantum of compensation is concerned ?

17. Point No.1: It is the contention of the

NWKRTC that the accident occurred due to the

contributory negligence on the part of the deceased. This

contention of the NWKRTC though found in the objection

statement filed by them, however, there is no

corroborative or rebuttal evidence led by the NWKRTC to

prove the factum that the accident had occurred due to the

negligence on the part of the deceased. On the other hand,

the perusal of the Ex.P-1 the complaint, Ex.P-2 the FIR,

Ex.P-3 the Spot mahazar, Ex.P-4 the Sketch, Ex.P-5 MVA

Report, clearly establishes the fact that there is no

motorcycle found as alleged on the place of the accident as

contended by the NWKRTC. The charge sheet Ex.P-7 has

been leveled against the driver of the NWKRTC and in

order to substantiate the contention that there was

negligence on the part of the deceased it is contended that

the driver of the NWKRTC has led evidence and spoke

about the negligence however, looking into the material on

record and the evidence of RW.1 it rather establishes the

fact that the accident had occurred due to the rash and

negligent driving of the driver of the bus not due to the

negligence on part of the deceased. In view of the facts

and circumstances of the case and for the reasons stated

supra we are of the considered opinion that contributory

negligence cannot be attributed to the deceased,

accordingly we answer point No.1 in the affirmative

holding that the Tribunal was justified in fastening the

liability upon the NWKRTC due to negligence on the part of

the driver of the bus.

18. Point No.2: Insofar as the quantum of

compensation is concerned it is contended by the NWKRTC

that the income taken by the tribunal at Rs.15,000/- per

month is on the higher side. Looking into Ex.Ps.14 to 36 it

clearly establish the fact that the deceased was aged about

26 years as on the date of accident and he was a bright

student and had completed his MBA Graduation in the year

2012. Ex.P.37 is an appointment letter of Dalmia Cement

(Bharat) Limited, 05.08.2014 wherein the deceased was

given appointment letter and expected to be appointed in

the said company on 01.09.2014 but, unfortunately the

deceased succumbed to the accident on 21.08.2014.

Ex.P.38 is the proposed salary slip of the company in

favour of the deceased which clearly shows that he was

supposed to earn Rs.6,45,912/- per year. The Tribunal

assessed the income of the deceased at Rs.15,000 per

month, which in our considered view is just and proper.

The tribunal has rightly awarded Rs.21,42,000/- under the

head of loss of dependency, taking into consideration the

dictum of Apex Court in the case of Pranay Sethi stated

Supra. Insofar as consortium is concerned the tribunal has

awarded Rs.25,000/- under the head of loss of love and

affection and Rs.15,000/- each under the head of loss of

estate and funeral expenses. In our considered view in

view of the dictum of the Hon'ble Apex Court in the case of

Satinder Kaur @ Satwinder Kaur and Magma General

Insurance Company Limited stated supra, quantum of

compensation under the head of loss of consortium and

conventional head need to be reassessed. Accordingly we

answer point no.2 in the affirmative holding that the

claimant is entitled for compensation under the following

heads;

Loss of parental consortium Rs.80,000/-

(40,000x2) Loss of estate Rs.15,000/-

           Funeral expenses                Rs.15,000/-
                 Total                   Rs.1,10,000/-

19. The tribunal has awarded Rs.55,000/- under

the above heads, deducting the same the claimants are

entitled to Rs.55,000/- (1,10,000 - 55,000) with interest

at the rate of 9% per annum from the date of petition till

realization. The awarding of 9% per annum interest is

undisturbed in view of the fact that enhanced

compensation is to the extent of Rs.45,000/- only.

20. In the result we pass the following;

ORDER

(i) The M.F.A No.101512/2019 filed by the

NWKRTC is hereby dismissed.

(ii) The MFA No.103695/2019 filed by the

claimant is allowed in part.

(iii) The judgment and award dated 19.01.2019

passed in MVC No.286/2015 by the II

Additional Senior Civil Judge and Additional

MACT, Gokak is hereby modified.

(iv) The claimants are entitled for enhanced

compensation of Rs.55,000/- at the rate of

9% per annum from the date of petition till

its realization.

  (v)          The NWKRTC - Corporation is directed to

               deposit    the        enhancement      amount    of

Rs.45,000/- At the rate of 9% per annum

from the date of petition till the date of

realization within a period of 4 weeks from

the date of release of this order.

     (vi)     On deposit of the said amount by the

              Insurance    Company     the   same   to   be

released in favor of the appellant No.2/

mother.

(vii) Registry is directed to transmit the records

forthwith.

(viii) Draw modified award accordingly.

No order as to costs.

SD/-

JUDGE

SD/-

JUDGE

PJ