Nekrtc vs Prajwal S/O Sayabanna
2022 Latest Caselaw 5164 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA NO.201091/2021 (MV)
                        C/W
                MFA NO.201214/2021

In MFA No.201091/2021

Between:

NEKRTC, through its
Divisional Controller,
MSK Mill Road, Kalaburagi.
(Now represented by Chief Law Office,
Central Office, Kalaburagi)
                                               ... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)

And:

1.     Chandrasha S/o Hanmantha Kamble,
       Age: 56 years, Occ: Coolie work,

2.     Laxmibai W/o Chandrasha Kamble,
       Age: 46 years, Occ: Household,

       Both R/o: Aurad (B),
       Tq. & Dist: Kalaburagi-585101.
                                            ... Respondents
(By Sri.Sanjeev Patil, Advocate)
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      This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to call for the records and allow
the above appeal by setting aside the impugned judgment
and award dated 27.01.2021 in MVC No.696/2019 passed
by the III Addl. Senior Civil Judge & MACT at Kalaburagi.


In MFA No.201214/2021

Between:

1.     Chandrasha S/o Hanamantha Kamble,
       Age: 56 years, Occ: Coolie,

2.     Smt. Laxmibai W/o Chandrasha Kamble,
       Age: 46 years, Occ: Household,

      Both R/o: Aurad (B), Tq & Dist: Kalaburagi.
                                             ... Appellants
(By Sri. Sanjeev Patil, Advocate)

And:

NEKRTC,
Through its Divisional Controller,
MSK Mill Road, Kalaburagi-585 102.
                                             ... Respondent
(By Smt. Preeti Patil Melkundi, Advocate)


     This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to call for the entire records
and modify the judgment and award dated 27.01.2021
passed by the learned III Addl. Senior Civil Judge & MACT,
Kalaburagi in MVC No.696/2019 by enhancing the
compensation amount as prayed for.

      These appeals coming on for Hearing Interlocutory
application, this day, the Court delivered the following:-
                                3




                           JUDGMENT

Since these two appeals arise out of the common

judgment and award, they are heard together and

disposed of by this common judgment.

2. These appeals are filed under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

challenging the judgment and award dated

27.01.2021 passed in MVC No.696 of 2019 by the III

Addl. Senior Civil Judge & Motor Accident Claims

Tribunal, Kalaburagi, (for short hereinafter referred to

as 'the Tribunal').

3. Parties are referred to as per their ranking

before the Tribunal. Appellant in MFA

No.201091/2021 is respondent, respondents are

petitioners before the tribunal.

4. Facts giving rise to filing of these appeals

are as under:

4.1. That on 26.03.2019, the deceased namely

Niranjan being the rider of the motor cycle bearing

registration No.KA-56/H-747 with one Prajwal and

another on his relatives as a pillion riders were

proceeding from Aurad (B) to Kapnoor village on the

left side of the road, when they reached near Salam

Takday, Tawargera Cross, Humnabad Road,

Kalaburagi, at that time the NEKRTC bus bearing

registration No.KA-38/F-798 came from behind with

high speed in a rash and negligent manner

endangering to human life and dashed to the motor

cycle on which the deceased was proceeding and

caused the accident. The petitioners being the legal

representatives of deceased filed a claim petition

under Section 166 of M.V.Act, seeking for

compensation on account of death of Niranjan in the

road traffic accident.

4.2. The respondent filed written statement in

which the averments made in the petition were

denied. It is contended that the accident was not

occurred due to the rash and negligent driving of the

driver of the bus, but it was occurred due to

negligence of the deceased rider of the motorcycle.

Therefore, respondent is not liable to pay

compensation to the petitioners. Hence, sought for

dismissal of the petition.

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

the Tribunal framed the issues and thereafter

recorded the evidence. In order to prove the case,

the petitioner No.1 examined himself as PW-1 and got

exhibited documents namely Ex.P1 to Ex.P9.. On

behalf of the respondent, one witness is examined as

RW-1. The Tribunal, by the impugned judgment, inter

alia, held that the petitioners have proved that on

26.03.2019 the deceased Niranjan met with an

accident and sustained grievous injuries and died due

to rash and negligent driving of the driver of NEKRTC

bus bearing registration No.KA-38/F-798 and further

held that the petitioners are entitled for compensation

and accordingly partly allowed the claim petition by

awarding compensation of Rs.14,08,736/- with

interest at the rate of 6% p.a. and directed the

respondent to deposit the compensation amount along

with interest. Being dissatisfied with the compensation

awarded by the Tribunal, the respondent-Corporation

filed MFA No.201091/2021 challenging the liability and

petitioner have filed MFA No.201214/2021 seeking for

enhancement of compensation amount.

5. Heard the learned counsel for respondent-

Corporation and learned counsel for petitioners.

6. The learned counsel for the respondent-

Corporation submits that the accident was occurred

due to rash and negligent riding of the deceased. She

further submits that there was no negligent on the

part of the driver of NEKRTC. She further submits that

the tribunal has committed an error in saddling the

liability on the respondent. Hence, prayed to allow the

appeal filed by the respondent and prayed to dismiss

the appeal filed by the petitioners.

7. Per contra, learned counsel for petitioners

submits that the tribunal was justified in fastening the

liability on the respondent. He further submits that the

compensation awarded by the Tribunal is on the lower

side. Hence, on these grounds prays to dismiss the

appeal filed by the respondent and prays to allow the

appeal filed by the petitioners.

8. Perused the records and considered the

submissions made by the learned counsel for the

parties.

9. The point that arise for consideration is

with regard to quantum of compensation.

10. It is not in dispute that deceased Niranjan

met with an accident that occurred on 26.03.2019 and

sustained injuries in the road traffic accident and due

the said accident the deceased succumbed to the

injuries. In order to prove the negligence on the part

of the driver of the offending vehicle, the petitioners

have produced copy of charge sheet which is marked

as Ex.P3. Ex.P3, discloses that the accident was

occurred due to rash and negligent driving of the drier

of the offending vehicle.

11. Insofar as quantum of liability is concerned,

it is the case of the respondent that the accident was

not occurred due to rash and negligent act of the

driver of the offending vehicle but it was because of

the negligence on the part of the motorcycle. In order

to prove that the accident was occurred due to rash

and negligent riding of the rider of the motorcycle, the

respondent has not produced any records. On the

contrary, the petitioners have produced copy of FIR

and charge sheet. Charge sheet is marked as Ex.P3.

The criminal case was registered against the driver of

the offending vehicle. Ex.P3, discloses that the

accident was occurred due to rash and negligent

driving of the driver of the offending vehicle. Hence,

the tribunal was justified in saddling the liability on

the respondent.

12. Insofar as quantum of compensation is

concerned, it is contended that the deceased was

doing Computer operating work and earning

Rs.6,000/- per month. In order to substantiate the

claim of the petitioners, the petitioners have not

produced any records to establish the income. In the

absence of income proof, the tribunal has taken the

notional income at Rs.13,250/- per month as per the

guidelines issued by the Karnataka State Legal

Services Authority and also added future prospects. In

view of the law laid down by the Constitution Bench of

the Supreme Court in National Insurance Co., Ltd.,

vs. Pranay Sethi and others reported in AIR 2017

SC 5157, and awarded compensation and held that

the annual income of the deceased was Rs.1,26,000/-.

The deceased was a bachelor and the tribunal has

deducted 50% towards the personal expenses of the

deceased. The age of the deceased was 18 years as

on the date of the accident and multiplier applicable to

his age group is "18". Thus, the tribunal has awarded

the compensation of Rs.11,34,000/- towards loss of

dependency.

13. However, the tribunal has failed to award

compensation under the head loss of consortium. In

view of the law laid down by the Hon'ble Supreme

Court in Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram & Others

reported in 2018 ACJ 2782, each of the petitioners are

entitled for compensation of Rs.40,000/- under the

head of 'loss of consortium', which comes to

Rs.80,000/-.

14. Hence, the petitioners are entitled for

enhanced compensation of Rs.80,000/-.

15. In view of the above discussion, I proceed

to pass the following:

ORDER

(a) The appeal filed by the respondent-

Corporation in MFA Nos.201091/2021 is

dismissed.

(b) The appeal filed by the petitioners in MFA

No.201214/2021 is allowed in part.

(c) The impugned judgment and award passed by

the Tribunal is modified. The petitioners are

entitled to the enhanced compensation of

Rs.80,000/- along with interest at the rate of

6% per annum from the date of petition till

the date of realization.

(d) The respondent-Corporation is directed to

deposit the enhanced compensation amount

within a period of eight weeks from date of

the receipt of certified copy of this judgment.

In view of the disposal of appeals, IA.No.1/2022

does not survive for consideration.

If any amount in deposit be transmitted to the

tribunal.

Sd/-

JUDGE

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