Karnataka High Court

T. Srekanth Sharma vs The Divisional Controller on 24 May, 2022

Bench: Krishna S Dixit, P.Krishna Bhat

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                                                  MFA No. 101479 of 2016
                                              C/W MFA No. 101478 of 2016
                                             MFA.CROB No. 100167 of 2016
                                             MFA.CROB No. 100168 of 2016



                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 24TH DAY OF MAY, 2022

                                      PRESENT
                      THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
                                        AND
                       THE HON'BLE MR JUSTICE P.KRISHNA BHAT
                           MFA NO. 101479 OF 2016 (MV)
                                      C/W
                             MFA NO. 101478 OF 2016
                           MFA CROB NO. 100167 OF 2016
                           MFA CROB NO. 100168 OF 2016


             IN MFA NO.101479/2016

             BETWEEN:
                   THE DIVISIONAL CONTROLLER, NEKRTC
                   KOPPAL DIVISION, KOPPAL
                   BALLARI DISTRICT, REP. BY
                   CHIEF LAW OFFICER, NEKRTC
                   CENTRAL OFFICE, KALABURAGI

                                                             ...APPELLANT
             (BY SRI. S C BHUTI, ADVOCATE)

             AND:

             1.    SHARADA W/O SHRIPADA BHAT
                   AGED ABOUT 48 YEARS, BUSINESS
                   R/O HOSANINGAPUR VILLAGE,
                   KOPPAL TALUK 7 DIST. NOW
                   R/O NEAR MOHAN NURSING HOME
Digitally
signed by
JAGADISH T
                   2ND CROSS, SATYANARAYANPET
R
Location:
                   BALLARI
HIGH COURT
OF
KARNATAKA,
DHARWAD
Date:
2022.05.27
11:00:42
+0530
                             -2-




                                     MFA No. 101479 of 2016
                                 C/W MFA No. 101478 of 2016
                                MFA.CROB No. 100167 of 2016
                                MFA.CROB No. 100168 of 2016



2.   HANAMAPPA C KJURIYAVUR
     S/O CHANDDAPPA
     AGED ABOUT 48 YEARS,
     R/O NILOGAL KOPPAL,
     BADGE NO. 1181 NEKRTC KUSTAGI
     DEPOT, KOPPAL DIVISIONAL
     KUSTAGI KOPPAL

                                              ...RESPONDENTS

(BY SRI. GIRISH S HULMANI FOR R1, ADVOCATE)

THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET-ASIDE THE JUDGMENT & AWARD DATED:07.01.2016, PASSED IN MVC.NO.1252/2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIM TRIBUNAL - II, BALLARI, IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA NO.101478/2016 BETWEEN:

THE DIVISIONAL CONTROLLER, NEKRTC KOPPAL DIVISION, KOPPAL BALLARI DISTRICT, REP. BY CHIEF LAW OFFICER, NEKRTC CENTRAL OFFICE, KALABURAGI

...APPELLANT (BY SRI. S C BHUTI, ADVOCATE)

AND:

1. SRI. T. SREEKANTH SHARMA S/O T. NARASIMHAIAH AGED ABOUT 70 YEARS,

2. SRI. T. SREEDHAR SHARMA S/O T. SREEKANTH SHARMA

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

AGED ABOUT 40 YEARS,

3. SRI. T. GURUPRASAD SHARMA S/O T. SREEKANTH SHARMA AGED ABOUT 36 YEARS

4. SMT. VIJAYALAKSHMI D/O T. SREEKANTH SHARMA AGED ABOUT 42 YEARS

ALL RESPONDENTS 1 TO 4 ARE R/O NEAR MOHAN NURSING HOME, IT IS STATED THAT ND CROSS SATYANARAYANAPET, BALLARI

5. HANAMAPPA C KJURIYAVUR S/O CHANDDAPPA, AGED ABOUT 48 YEARS, R/O NILOGAL KOPPAL, BADGE NO. 1181 NEKRTC KUSTAGI DEPOT, KOPPAL DIVISIONAL, KUSTAGI, KOPPAL

...RESPONDENTS

(BY SRI. GIRISH S HULMANI, ADV. FOR R1 TO R4) ( R5-SERVED)

THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET-ASIDE THE JUDGMENT & AWARD DATED:07.01.2016, PASSED IN MVC.NO.1251/2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIM TRIBUNAL - II, BALLARI, IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA CROB NO.100168/2016 BETWEEN:

SMT. SHARADA W/O SHRIPADA BHAT AGE:48 YEARS, OCC:BUSINESS, NOW NIL R/O HOSANINGAPUR, TQ:KOPPAL, NOW AT R/O NEAR MOHAN NURSING HOME, II CROSS,

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

SATYANARAYANAPET, BALLARI-583101.

...CROSS OBJECTOR (BY SRI.GIRISH S HULMANI, ADVOCATE)

AND:

1. THE DIVISIONAL CONTROLLER NEKRTC, KOPPAL DIVISION, KOPPAL, BALLARI DIST, REP. BY CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICE, KALABURAGI-585101.

2. HANAMAPPA S/O CHANDAPPA KJURIYAVUR AGED ABOUT 48 YEARS, OCC:DRIVER, R/O NILOGAL KOPPAL, BADGE NO. 1181 NEKRTC KUSTAGI DEPOT, KOPPAL DIVISION, KUSTAGI, KOPPAL-583231.

...RESPONDENTS

(BY SRI. S.C. BHUTI, ADV. FOR R1) (NOTICE TO R1 DISPENSED WITH)

THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF CPC PRAYING TO DISMISS THE APPEAL FILED BY THE APPELLANT-CORPORATION AND ENHANCE THE COMPENSATION AWARDED BY HON'BLE MACT-II IN MVC NO.1252/2013 DATED 7.1.2016 BY ALLOWING THIS CROB.

IN MFA CROB NO.100167/2016 BETWEEN:

1. SRI. T. SREEKANTH SHARMA S/O T. NARASIMHAIAH AGED ABOUT 70 YEARS,

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

2. SRI. T. SREEDHAR SHARMA S/O T. SREEKANTH SHARMA AGED ABOUT 40 YEARS,

3. SRI. T. GURUPRASAD SHARMA S/O T. SREEKANTH SHARMA AGED ABOUT 36 YEARS

4. SMT. VIJAYALAKSHMI D/O T. SREEKANTH SHARMA AGED ABOUT 42 YEARS

ALL ARE R/O NEAR MOHAN NURSING HOME, II CROSS, SATYANARAYANAPET, BALLARI-583101.

...CROSS OBJECTORS (BY SRI.GIRISH S HULMANI, ADVOCATE)

AND:

1. THE DIVISIONAL CONTROLLER NEKRTC, KOPPAL DIVISION, KOPPAL, BALLARI DIST, REP. BY CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICE, KALABURAGI-585101.

2. HANAMAPPA S/O CHANDAPPA KJURIYAVUR AGED ABOUT 48 YEARS, OCC:DRIVER, R/O NILOGAL KOPPAL, BADGE NO. 1181 NEKRTC KUSTAGI DEPOT, KOPPAL DIVISION, KUSTAGI, KOPPAL-583231.

...RESPONDENTS

(BY SRI. S.C. BHUTI, ADV. FOR R1) (NOTICE TO R1 DISPENSED WITH)

THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF CPC PRAYING TO DISMISS THE APPEAL FILED BY THE APPELLANT-CORPORATION AND ENHANCE THE COMPENSATION

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

AWARDED BY HON'BLE MACT-II IN MVC NO.1251/2013 DATED 7.1.2016 BY ALLOWING THIS CROB.

THESE APPEALS AND CROSS OBJECTIONS COMING ON FOR ADMISSION, THIS DAY, KRISHNA S DIXIT J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Two appeals in MFA No.101479/2016 and MFA

No.101478/2016 are by the NEKRTC. The appeals in MFA

Crob No.100167/2016 and MFA No.100168/2016 are by

the claimants. All they seek to call in question a common

judgment & award dated 7.1.2016 rendered by MACT-II,

Ballary in MVC Nos.1251/2013 and 1252/2013, whereby a

compensation of Rs.7,27,065/- in respect of death of one

Smt. Jayashree and another compensation of

Rs.5,09,780/- in favour of the injured/claimant-Smt.

Sharada, have been awarded. Challenge by the NEKRTC is

founded on the ground of "no liability", whereas that by

the claimants is structured on the ground of inadequacy of

compensation.

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

2. Brief foundational facts:

i) The vehicular accident in question

happened on 30.03.2013, at around

7.45 p.m. near Hosaningapur Village in

Koppal Taluk, because of rash &

negligence of driving of offending

NEKRTC Bus bearing Registration No.KA-

37/F-301. Due to this, one Smt.

Jayashree having suffered fatal injuries

succumbed thereto on 5.4.2013, medical

treatment having not yielded benefit.

Similarly, her companion Smt. Sharada

suffered grievous injuries and

fortunately she survived after a

prolonged medical treatment.

ii) Husband and children of the deceased

Jayashree moved MVC No.1251/2013

seeking compensation. Similarly, injured

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

Sharada preferred MVC No.1252/2013

claiming compensation. After service of

notice, owner of the offending vehicle

i.e. NEKRTC having entered appearance

through its Panel Advocate filed Written

Statement resisting the claim petitions.

iii) To prove their cases, claimant/husband

in MVC No.1251/2013 was examined as

PW1, similarly the claimant-Smt.

Sharada in MVC No.1252/2013 was

examined as PW2 and one Dr. M.J.

Shashidhara Reddy, a medical witness

was examined as PW3, it is stated that

he is not a 'treated doctor'. From the

side of claimants, 64 documents came to

be marked as per Exs.P1 to P64, which

inter-alia comprised of police papers,

MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

medical records, death certificate,

disability certificate, etc.

iv) MACT after adverting to the pleadings of

the parties and weighing the evidentiary

material on record has entered a

common judgment & plural awards that

are put in challenge both by the owner

of offending vehicle and the claimants,

each seeking to counter other's case.

3. We have heard the learned Panel Counsel

appearing for the NEKRTC i.e. owner of the offending

vehicle and learned Advocate appearing for the claimants.

We have perused the original Trial Court Records. We are

inclined to grant indulgence in these appeals of NEKRTC,

as under and for the following reasons:

i) There is no much dispute about the

happening of the vehicular accident in

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

question, although learned panel counsel

appearing for the owner of the offending

vehicle vehemently pleaded "contributory

negligence" attributable to the deceased &

injured. In support of his contention, he

banks upon the Spot Mahazar drawn by the

jurisdictional Police a day after the accident.

Much reliance cannot be placed on the said

document at Ex.P4, because of lapse of time

between the incident and the drawing of

Mahazar. No plausible explanation is offered

for the culpable delay brooked in

accomplishing the spot inspection. This

apart, the mahazar itself shows that the

deceased & the injured claimant were

crossing the National Highway from the right

to the left doing some shopping nearby; but

drawing shows that the offending vehicle

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

was taken from the left to the middle of the

road and thereby hit these two unfortunate

women, one of whom fatally. In fact, the

Mahazar to some extent, supports the case

of claimants.

ii) It has been long settled that a case of

contributory negligence has to be established

by one who pleads it by placing on record

cogent evidentiary material. Nothing has

been stated by the Management of NEKRTC,

as to what action was taken against the

delinquent driver in respect of the accident in

question. There are police papers, which

have come into existence after the

registration of crime in question and the

investigation thereof; they to an extent

support the case of claimants inasmuch as,

driver is charge sheeted, copy whereof is at

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

Ex.P2. These police papers have come into

existence in due course of the discharge of

public duties and therefore, a presumption of

their correctness u/S 35 read with Sec 114

of the Indian Evidence Act, 1872, in the

absence of rebuttal factors being established.

Therefore, no case is made out for

indulgence in respect of finding as to the

accident and consequent injury, to which one

succumbed as already mentioned above.

iii) The above having been said, there is some

force in the contention of the learned Panel

Counsel appearing for the owner of the

offending vehicle that law of compensation

enacted in the M.V. Act, 1988 is on the basis

of compensatory principles, and therefore,

no profit can be worked out from the

accident. He points out that the husband of

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

Smt.Jayashree, who happens to be first

claimant in MVC No.1251/2013 has got

reimbursement towards medical expenses of

the deceased spouse in a sum of

Rs.2,10,132/-. This fact has been admitted

by him in his cross examination dated

26.8.2015 which runs under:

" It is true that amount mentioned in Ex.P43 at Rs.2,10,132/- has been reimbursed through Medi Assist. Witness volunteers that the said provision has been made by the employer of my son who is working in Tata Consultancy Services, Bangalore...."

Therefore, a discount ought to have been

granted by the MACT protanto.

iv) Learned counsel appearing for the claimants

contends that the life being as precious as

can be, compensation awarded for the death

of Smt. Jayashree is inadequate. However,

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

no evidentiary material is placed on record

by the claimants side to show that the

deceased and the injured were carrying on

the saree business as asserted before the

Tribunal. Therefore, such a contention

cannot be favoured. Further, there is force

in his contention that in the absence of

evidentiary material establishing the income,

ordinarily, the Courts and Tribunals operate

the Notional Income Chart prepared by the

Legal Services Authority of this Court, is

true. The Tribunal has taken income of the

deceased and of the injured at Rs.5,000/-

per month, when the Notional Income Chart

mentions Rs.7,000/- per month for the

accident year in question. No explanation is

offered as to why what has been prescribed

by the Chart should not be acted upon in the

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

absence of evidence. Therefore, figure of

Rs.5,000/- per month needs to be altered to

Rs.7,000/- for the purpose of working out

the compensation under the head

"loss of dependency."

v) Learned counsel appearing for the claimants

is justified in invoking the principles laid

down by the Apex Court in National

Insurance Company Limited vs. Pranay

Sethi and others, (2017) 16 SCC 680 for

awarding incremental value by way of

future prospects at the rate of 10% to the

deceased, since she was in the age group of

50-60 years and 25% increment in respect

of injured claimant, who was in the age

group of 40-50 years.

vi) Learned counsel for the injured/claimant

vehemently contends that the

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

compensation awarded by the MACT is

inadequate vis-à-vis nature of the injuries

suffered and longevity of the hospitalization

i.e. for a period of three months. However,

learned Panel Counsel appearing for the

NEKRTC contends that the disability value

has been taken as higher as 20%, when it

was only 11%. The Tribunal is a Statutory

Authority having accumulated expertise in

the matter; some guess work is necessarily

involved in matters like this, MACT has

awarded a compensation of Rs.5,09,780/-.

However, we are of considered view that

justice of the case warrants a marginal

enhancement and therefore, same has been

enhanced to Rs.5,40,000/-.

vii) There is some force in the submission of

learned counsel for the claimants that in

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

view of law laid down by the Apex Court in

Pranay Sethi (supra), Magma General

Insurance Co. Ltd., vs. Nanu Ram and

others, (2018) 18 SCC 130, United

India Insurance Co. Ltd., v. Satinder

Kaur alias Satwinder Kaur and others,

AIR 2020 SC 3076, a certain

compensation needs to be awarded for loss

of parental consortium & spousal

consortium; keeping in view all aspects of

the matter and also the values mentioned

in the above judgments, we award a sum of

Rs.1,90,000/- by way of compensation

collectively under this head. This also

includes the compensation payable towards

'loss of estate' and 'funeral expenses'.

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

4. With the altered factors, the compensation in

MVC No.1251/2013 has been computed freshly as under:

1) Loss of Dependency Rs.5,54,400/-

(Rs.7,000 + 10 % = Rs.7,700 -

1/3 = Rs.5,133 x 12 x 9= Rs.5,54,400/-)

2) Towards Conventional heads Rs.1,90,000/-

i) loss of spousal consortium & parental consortium

ii) loss of estate

iii) funeral expenses Total Rs.7,44,400/-

In the above circumstances, we make the following:

ORDER

i) MFA No.101478/2016 and MFA

No.101479/2016 filed by the NEKRTC

having been partly favoured; although

the quantification of compensation has

been left undisturbed, the amount

payable is reduced by Rs.2,10,132/-

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MFA No. 101479 of 2016 C/W MFA No. 101478 of 2016 MFA.CROB No. 100167 of 2016 MFA.CROB No. 100168 of 2016

(Rupees Two Lakh Ten Thousand One

Hundred & Thirty two) only.

ii) MFA Crob No.100167/2016 filed by the

claimant is marginally favoured; to the

compensation awarded by the Tribunal,

10% increment has been added vide

Pranay Sethi (supra) and Rs.40,000/-

to each of the claimants vide Magma

(supra) and Satinder Kaur (supra). All

this collectively comes to Rs.7,04,400/-

(Rupees Seven Lakh Four Thousand

Four Hundred) only as mentioned

above.

iii) MFA Crob No.100168/2016 is favoured