Karnataka High Court
Jayashree W/O. Nandalal Surana vs Managing Director on 6 September, 2022
Bench: S G Pandit, Anant Ramanath Hegde
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 103125/2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 104034/2019 (MV-D)
IN MFA NO.103125/2019
BETWEEN:
THE DIVISIONAL CONTROLLER
N.W.K.R.T.C, DIVISION OFFICE,
DHARWAD, REP BY CHIEF LAW OFFICER,
NWKRTC CENTRAL OFFICE
HUBBALLI
...APPELLANT
(BY SRI. M K SOUDAGAR, ADVOCATE)
AND:
1. SMT.JAYASHREE W/O NANDALAL SURANA
AGE:51 YEARS, OCC:HOUSEHOLD WORK,
R/O:MARWADI GALLI, BAGALKOT 580028
2. SHRADDHA W/O ABHISHEK SINGHVI
AGE:29 YEARS, OCC:HOUSEHOLD WORK,
R/O:H NO.228, 4TH CROSS, 3RD BLOCK,
Digitally
HRBR LAYOUT, KALYAN NAGAR, BANGALORE 580028
signed by John
Doe
John
Location: High
Court of
Karnataka,
3. SHREEYA D/O NANDALAL SURANA
Dharwad
AGE:24 YEARS, OCC:STUDENT (MBA)
Doe Bench
Dharwad.
Date:
2022.09.12
10:39:28
R/O:MARWADI GALLI, BAGALKOT 580028
+0530
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
4. CHIRAG S/O NANDALAL SURANA
AGE:17 YEARS, OCC:STUDENT,
R/O MARWADI GALLI, BAGALKOT 580028
(SINCE THE RESPONDENT NO.4 IS MINOR
REP. BY HIS NATURAL GUARDIAN RESPONDENT NO.1)
5. CHAMKUBAI W/O KANHAIYYALAL @
KANAIALAL SURANA, AGE:88 YEARS, OCC:NIL,
R/O:MARWADI GALLI, BAGALKOT 580028
SINCE DECEASED RESPONDENTS 1 TO 4 ARE TREATED
AS LRS.
6. MANAGING DIRECTOR
NWKRTC GOKUL ROAD,
HUBBALLI (PROCESS MAY SERVED THROUGH
DIVISIONAL CONTROLLER
...RESPONDENTS
(BY SRI. CHANDRASHEKHAR M HOSAMANI, ADV. FOR R1-R4)
(R1 TO R4 ARE TREATED AS LRs OF DECEASED R5)
(R6-NOTICE DISPENSED WITH)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 10.05.2019
PASSED IN MVC NO.14/2016 ON THE FILE OF THE MEMEBR,
MOTOR ACCIDENT CLAIMS TRIBUNAL-III, BAGALKOT, AWARDING
COMPENSATION OF Rs.28,95,460/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION.
IN MFA NO.104034/2019
BETWEEN:
1. JAYASHREE W/O. NANDALAL SURANA
AGE :51 YEARS, OCC : HOUSEHOLD WORK,
R/O : MARWADI GALLI, BAGALKOT
2. SHRADDHA W/O. ABHISHEK SINGHVI
AGE : 29 YEARS, OCC : HOUSEHOLD WORK,
R/O : H.NO.228, 4TH CROSS, 3RD BLOCK, HRBR
-3-
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
LAYOUT, KALYAN NAGAR, BENGALURU
3. SHREEYA D/O. NANDALAL SURANA
AGE : 24 YEARS, OCC : STUDENT (MBA),
R/O : MARWADI GALLI, BAGALKOT.
4. CHIRAG S/O. NANDALAL SURANA
AGE : 17 YEARS, OCC : STUDENT,
R/O : MARWADI GALLI,
BAGALKOT.
SINCE MINOR REP. BY HIS MOTHER APPELLANT NO.1
...APPELLANTS
(BY SRI. CHANDRASHEKHAR M HOSAMANI, ADVOCATE)
AND:
1. MANAGING DIRECTOR,
NWKRTC GOKUL ROAD,
HUBBALLI-580020
(PROCESS MAY SERVED THROUGH DIVISIONAL
CONTROLLER, NWKRTC,
DIVISION OFFICE, BAGALKOT-587102
2. THE DIVISIONAL CONTROLLER
NWKRTC, DIVISION OFFICE,
DHARWAD-580 001.
...RESPONDENTS
(BY SRI. M K SOUDAGAR, ADVOCATE)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 10.05.2019
PASSED IN MVC NO.14/2016 ON THE FILE OF THE MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, BAGALKOT, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY, S.G.
PANDIT J., DELIVERED THE FOLLOWING:
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
JUDGMENT
Though these appeals are listed for orders, they are
taken up for final disposal, with the consent of learned
counsel for both the parties.
2. NWKRTC is in appeal in MFA No.103125/2019
challenging the contributory negligence as well as
quantum of compensation which is excessive and
exorbitant. The claimants are also in appeal in MFA
No.104034/2019 praying for enhancement of
compensation, not being satisfied with the quantum of
compensation awarded under judgment and award dated
10.05.2019 passed in MVC No.14/2016 on the file of the
learned Member, MACT, Bagalkot (for short, 'Tribunal').
3. The claimants, who are the wife, children, sister
and mother of the deceased Nandalal Surana, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation for the accidental death of deceased
Nandalal Surana, that took place on 03.11.2015 involving
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
Motorcycle bearing registration No.KA-29/V-9186 and
NWKRTC Bus bearing registration No.KA-25/F-2988.
4. On issuance of notice, respondent No.1
remained absent and placed exparte. Respondent No.2-
NWKRTC appeared through its counsel and filed statement
of objections denying the entire claim petition averments.
It was contended that the accident occurred due to sole
negligence of deceased rider of motorcycle in question. It
was further contended that there was no fault on the part
of the driver of NWKRTC, who was driving the bus
following the traffic rules and regulations. Thus, sought for
dismissal of the claim petition.
5. Before the Tribunal, claimant No.1-wife of the
deceased examined as PW1 and examined another witness
as PW2 apart from marking the documents as Exs.P1 to
P17. The respondents examined driver of Bus as RW1 and
marked the documents as Ex.R1 & R2. The Tribunal based
on the material on record awarded a total compensation of
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
Rs.28,95,460/- with interest at 6% per annum from the
date of judgment till realization on the following heads:
Loss of dependency Rs.28,25,460/-
Loss of consortium Rs. 40,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
------------------
Total Rs.28,95,460/-
------------------
6. While awarding the above compensation, the
Tribunal determined the income of the deceased at
Rs.2.97,809/- per annum, applied multiplier of 11 as the
deceased was aged 54 years and deducted 1/4th towards
personal expenses of the deceased. The Tribunal held that
the accident occurred due to negligence of driver of
NWKRTC bus in question and saddled the entire liability on
the appellant/Corporation. The appellant-Corporation is in
appeal before this Court aggrieved by saddling of liability
as well as quantum of compensation which is on the
higher side and the claimants are also in appeal praying
for enhancement of compensation, not being satisfied with
the quantum of compensation awarded by the Tribunal.
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
7. Sri. M.K. Soudagar, learned counsel appearing
for the appellant-Corporation in support of his appeal
strenuously contended that the Tribunal committed a
grave error in saddling the entire liability on the part of
driver of the bus in question, since the accident took place
solely due to negligent riding of the motorcycle by the
deceased. Further, learned counsel placing reliance on
Ex.P3-Spot Panchanama along with sketch map would
submit that rider of the motorcycle who was coming from
Mahesh Colony entered the main road and bus in question,
which was coming from APMC towards Daddennavar cross,
dashed to the motorcycle of the deceased. He further
submits that the rider of the motorcycle in question ought
to have been careful at the junction and without noticing
the bus which was coming from APMC towards
Daddennavar cross, he entered the main road and caused
the accident. It is further submitted that the accident
occurred due to sole negligence on the part of the
deceased who was riding the motorcycle in question and
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
therefore, contributory negligence is to be fixed to the
extent of 90:10 between deceased and NWKRTC.
8. As regards the quantum of compensation
awarded by the Tribunal, learned counsel Sri. M.K.
Soudagar does not dispute the factum of income of the
deceased assessed by the Tribunal at Rs.2,97,809/- per
annum based on income tax return at Ex.P8. It is his
submission that the Tribunal committed an error in adding
15% of the assessed income of the deceased towards
future prospects, since the claimants would be entitled to
10% of the assessed income as held by the Hon'ble Apex
Court in the case of National Insurance Company
Limited Vs. Pranay Sethi & Others1. Thus, he prays for
modifying the judgment and award by allowing the appeal
filed by the Corporation.
9. Per contra, Sri. Chandrashekhar M Hosamani,
learned counsel for the appellants/claimants in support of
his appeal would submit that the Tribunal is justified in
AIR 2017 SC 5157
MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
holding that the accident occurred due to sole negligence
on the part of driver of the bus in question. He further
submits that the police have filed charge sheet against the
driver of the bus in question. It is his submission that the
Tribunal has assessed the income of the deceased at
Rs.2,97,809/- per annum, which is on the lower side. He
further submits that the deceased was doing business and
earning Rs.20 lakhs per annum. He further submits that
since there are four dependents, claimants would be
entitled to Rs.40,000/- each towards loss of consortium as
held by the Hon'ble Apex Court in the case of Magma
General Insurance Co. Ltd. Vs. Nanu Ram & Others2.
He also submits that the Tribunal committed an error in
awarding interest on the compensation amount from the
date of judgment till realization instead of from the date of
petition till realization. Thus, learned counsel prays for
allowing the appeal filed by the claimants by enhancing
the compensation.
2018 ACJ 2782
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
10. Having heard the learned counsel for both the
parties and on perusal of the appeal papers along with
original records, the following points would arise for our
consideration in these appeals:
a) Whether the Tribunal is justified in
holding that the accident had occurred
due to sole negligence on the part of
the driver of NWKRTC bus in question?
b) Whether the claimants would be
entitled for enhanced compensation?
11. Our answer to the above points is in the
affirmative for the following reasons:
12. The occurrence of the accident on 03.11.2015
and resultant death of Nandalal Surana involving
Motorcycle bearing registration No.KA-29/V-9186 and
NWKRTC Bus bearing registration No.KA-25/F-2988 is not
in dispute. It is the contention of the Corporation that
there is no fault on the part of the driver of the bus in
question in causing the accident resulting in death of the
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
deceased Nandalal Surana. It is true that the deceased
rider of the motorcycle entered the main road from
Mahesh Colony, which is a junction and intersection. Spot
of the accident is about 30 ft. away from said junction; the
bus was coming from APMC side towards Daddennavar
Cross. The driver of the bus ought to have been careful
and it was the responsibility of the driver of the bus to
slow down the bus at the junction and intersection. It
appears that the driver of the bus was driving the bus in a
high speed due to which, he could not control at the
junction/intersection area. Moreover, charge sheet is filed
against the driver of the bus in question. Even though the
driver of the bus is examined as RW1, who is an interested
witness, nothing much in support of contention of the
appellant/NWKRTC is elicited. From Ex.P3-Spot
Panchanama along with sketch map, it is clear that there
was no fault on the part of the deceased, who was riding
the motorcycle and entered the main road from Mahesh
Colony. The Tribunal based on evidence and material on
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
record rightly held that the accident had occurred due to
sole negligence on the part of driver of the of NWKRTC bus
in question. The said finding of the Tribunal is based on
the material evidence on record and there is no error or
perversity in the said finding. Thus, the contention of the
appellant-NWKRTC with regard to contributory negligence
cannot be accepted and same is rejected. Accordingly,
Point No.1 is answered in the affirmative.
13. As regards the quantum of compensation, wife
of the deceased examined as PW1 has deposed in her
evidence that the deceased was doing business and
earning Rs.20 lakhs per annum. Ex.P8 is the income tax
return for the assessment year 2015-16 which discloses
gross salary of the deceased for the assessment year
2015-16 as Rs.3,33,809/- and the deceased had paid
Rs.33,000/- towards income tax. The Tribunal based on
material placed on record has rightly assessed income of
the deceased at Rs.2,97,809/- per annum, which in our
view is just and proper and needs no interference.
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
14. There is no dispute with regard to the age of
the deceased as 54 years, multiplier of 11 and also
deduction of 1/4th towards personal expenses of the
deceased. It is to be noticed that the Tribunal has added
15% of the assessed income of the deceased towards
future prospects. The deceased was aged 54 years and in
terms of decision of Hon'ble Apex Court in Pranay Sethi
(supra), the claimants would be entitled to addition of
10% of the assessed income towards future prospects.
Accordingly, the claimants would be entitled for
compensation on the head of loss of dependency at
Rs.27,02,617/- (Rs.2,97,809/- + 10/100 x 11 x 3/4).
15. Further, 1st claimant being wife of the deceased
is entitled to Rs.40,000/- towards spousal consortium,
whereas 3rd and 4th claimants being children of the
deceased would be entitled for Rs.40,000/- each towards
parental consortium as held by the Hon'ble Apex Court in
Magma General Insurance Company Limited (supra).
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
Further, the Tribunal awarded a sum of Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses and transportation of dead body, which is just
and proper and same is not disturbed. Thus, the claimants
would be entitled for modified compensation on the
following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.27,02,617/-
(Rs.2,97,809/- + 10/100 =
= Rs.3,27,590/- x 11 x 3/4)
= Rs.27,02,617/-
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Spousal & Parental Rs. 1,20,000/-
Consortium (Rs.40,000/-
each to claimants 1, 3 & 4)
Total Rs.28,52,617/-
16. The Tribunal committed an error in granting
interest on the compensation amount from the date of
judgment till realization. It is well settled law that on the
compensation amount, normally, interest shall be awarded
from the date of petition till realization. Therefore, in the
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
instant case also, the claimants would be entitled to
interest at 6% per annum from the date of petition till
date of realization.
17. Thus, the claimants would be entitled to total
compensation of Rs.28,52,617/- as against
Rs.28,95,460/- awarded by the Tribunal.
18. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to the extent
that the claimants are entitled to total
compensation of Rs.28,52,617/- as
against Rs.28,95,460/- awarded by the
Tribunal.
c) The entire compensation amount will
bear interest at the rate of 6% per
annum from the date of claim petition
till date of realization.
d) The appellant-Corporation shall deposit
the entire compensation amount with
accrued interest before the Tribunal
within a period of six weeks from the
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MFA No. 103125 of 2019
C/W MFA No. 104034 of 2019
date of receipt of certified copy of this
judgment.
e) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
f) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
g) Draw modified award accordingly.
SD
JUDGE
SD
JUDGE
JTR
