Karnataka High Court
The Divisional Controller vs Shobha W/O. Siddappa Kichadi on 19 September, 2022
Bench: H.P.Sandesh
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MFA No. 20359 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 20359 OF 2012 (MV-D)
BETWEEN:
1. THE DIVISIONAL CONTROLLER,
NWKRTC, CHIKODI DIVISION, CHIKODI,
DIST: BELGAUM.
2. THE MANAGING DIRECTOR,
NWKRTC, HUBLI ,AT: POST: HUBLI,DIST: DHARWAD.
...APPELLANTS
(BY SRI. S C BHUTI, ADVOCATE)
AND:
1. SHOBHA W/O. SIDDAPPA KICHADI,
AGE: 23 YEARS, OCC: COOLIE,
R/O: UPPARATTI, TQ: GOKAK, DIST: BELGAUM.
2. KUMAR. SHIVANAND S/O. SIDDAPPA KICHADI,
AGE: 05 YEARS, OCC: NIL,
SINCE MINOR R/BY HIS NEXT FRIEND
MOTHER M/G SMT. SHOBHA W/O. SIDDAPPA KICHADI
RESPONDENT NO.1.
3. BHIMAWWA W/O. PANDAPPA KICHADI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: UPPARATTI, TQ: GOKAK,
DIST: BELGAUM.
4. PANDAPPA S/O. RAMAPPA KICHADI,
AGE: 53 YEARS, OCC: COOLIE,
R/O: UPPARATTI, TQ: GOKAK,DIST: BELGAUM.
...RESPONDENTS
(BY SRI.BAHUBALI N.KANABARAGI, ADV. FOR R1 TO R4,
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MFA No. 20359 of 2012
R2 IS MINOR REP. BY R1)
THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DTD:20-07-2011 PASSED IN
MVC.NO.2137/2009 ON THE FILE OF THE I-ADDL. SENIOR
CIVIL JUDGE AND MEMBER, ADDL. MACT, GOKAK,
AWARDING THE COMPENSATION OF RS.4,89,263/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants
and the learned counsel appearing for the respondents.
2. This appeal is filed against the judgment and award
dated 20.07.2011 passed by the 1st Addl. Senior Civil Judge
and Addl. MACT, Gokak, in M.V.C.No.2137/2009.
3. The factual matrix of the case of the claimants
before the Tribunal is that on 26.08.2009 at about 7.35 a.m.
Shri Shiddappa Pandappa Kichadi aged about 20 years resident
of Upparatti village of this Gokak taluk was washing the cattle
in the nala near Upparatti bridge on Mellikeri-Gokak road, at
that time NWKRTC bus bearing registration No.KA-25/F-2484
came in a rash and negligent manner and the stone on which
MFA No. 20359 of 2012
the wheel of the bus came in contact was put into motion
whereby the said stone went and hit to the head of the said
Siddappa Pandappa Kichadi. As a result of the same, the
claimant/appellant sustained injuries. Immediately, he was
shifted to Government Hospital at Gokak wherein first aid
treatment was given and from there he was shifted to
K.L.E.Hospital, Belgaum, for further treatment. But, he
succumbed to the injuries during treatment. It is the further
case of the claimants that at the time of accident, the deceased
Siddappa Pandappa Kichadi was aged about 20 years and was
hale and healthy and doing mason work and earning Rs.110/-
per day and maintaining his family. Due to the untimely death
of Shiddappa Pandappa Kichadi, the family has lost the bread
earner of the family. Hence, the claimants filed claim petitions
before the Tribunal seeking for compensation.
4. On issuance of summons, the respondents
appeared through their counsel and filed the written statement
denying the very said incident and that the said Shiddappa
Pandappa Kichadi might have died due to some other reason
and in order to have a wrongful gain, a story is created and
hence, the NWKRTC is not liable to pay any compensation.
MFA No. 20359 of 2012
5. Learned counsel appearing for the
appellant/NWKRTC vehemently contended that the accident has
taken place on 26.08.2009 and the complaint was given on
28.08.2009 and hence the story was created which was an
afterthought. The learned counsel would also submit that the
Tribunal has failed to take note of the fact that RWs-1 and 2
have categorically stated in their evidence that there was no
accident and no police case is registered against the driver of
the bus and police have not recorded his statement. The
Tribunal only based on the circumstantial evidence came to the
conclusion that the driver of the bus was driving the bus in a
rash and negligent manner. He further submits that the
Tribunal also committed an error in taking the monthly income
of Rs.3,300/- without any basis. The learned counsel would
also submit that the Tribunal failed to take note of the fact that
there was delay in lodging the complaint and case was also
registered as UDR and petition was filed under Section 163-A
before the Tribunal and the Tribunal has erroneously come to
the conclusion that the bus driver was rash and negligent which
is not an ingredient in the petition filed under Section 163-A of
the Motor Vehicles Act and it is only the use of the vehicle
MFA No. 20359 of 2012
which caused the accident is the criteria. Hence, he submits
that the judgment and award of the Tribunal calls for
interference of this Court.
6. Per contra, learned counsel for the claimants would
contend that the eye-witness i.e., P.W.2 has been examined
before the Tribunal and he has categorically explained how the
incident has taken place and that immediately after the
accident, the injured was shifted in the very same bus.
Though, RWs-1 and 2 have been examined and RW-1 has
categorically admitted the document Ex.R.1 and Ex.R1(A) and
that in Ex.R1 nothing is found with regard to the defect in the
vehicle but the same is mentioned in Ex.R1(A). He admits that
Ex.R1(A) is distinguished from Ex.R.1. RW-1 categorically
states he is not having any knowledge about Ex.R.1 and
Ex.R1(A) and only he went and gave Ex.R.1 to his counsel and
this evidence clearly discloses that the document is
manipulated by NWKRTC. The learned counsel would also
submit that RW-2 being the Depot Manager has been examined
and in his cross-examination, he admits that an opinion was
given that no such incident has taken place. Hence, the
MFA No. 20359 of 2012
learned counsel for the claimants submits that the impugned
judgment and award does not call for any interference.
7. Having heard the learned counsel appearing for the
parties and also on perusal of the material available on record,
the points that arise for consideration of this Court are:
i) Whether the Tribunal has committed an error in
fastening the liability on the NWKRTC and whether
it requires interference?
ii) Whether the Tribunal has awarded more
compensation as contended in the appeal memo?
iii) What order?
Reg:Point No.1:
8. Having heard the learned counsel for the parties
and on perusal of the material on record, it is seen that in the
claim petition specific allegation is made that the driver of the
bus drove the same in a rash and negligent manner and the
stone which came in contact with the tyre moved towards the
injured and he sustained injury to his head. In order to prove
the said fact, the claimant examined P.W.-2 and P.W.-2 also
MFA No. 20359 of 2012
states that he was also present at the accident spot and that
the injured was taken to the hospital immediately after the
incident in the very same bus. Though a suggestion was made
that the bus was not involved in any such incident, but the said
suggestion was denied. The RW-1 claims that no such incident
has taken place but in the cross-examination, he admits that
Ex.R.1 and Ex.R1(A) are having different versions and he
categorically admits that he cannot say as to when the
photocopy of Ex.R.1 was got to make Ex.R1(A) and he is not
aware of the same but the same was produced by the
Department and he has not produced the Ex.R1(A). On perusal
of Ex.R.1, no doubt it is clearly mentioned that the bus left at
6'0 clock and reached at 8.30 but in Ex.R1(A) though the same
is mentioned, but at the bottom a report is given that the bus
had some defect and that the tyre was punctured but no
explanation is given by both RWs-1 and 2 with regard to the
document Ex.R1 and Ex.R1(A) and that RW-1 admits that the
same is produced by the Department. Having taken note of the
admission made by RW-1, it is clear that the documents at
Ex.R.1 and Ex.R1(A) in respect of the very same vehicle, two
documents came into existence but there is no explanation
MFA No. 20359 of 2012
from NWKRTC side. When such being the case and when P.W.2
also states that injured was shifted to the hospital in the very
same bus, it is clear that the incident had taken place. Hence,
the Tribunal has rightly come to the conclusion that the injured
sustained the injuries on account of the rash and negligent
driving on the part of the driver of the bus which caused the
incident and hence, I do not find any merit in the appeal filed
by the appellant. Hence, I answer Point No.1 in the negative.
Reg:Point No.2:
9. Now coming to the quantum of compensation
awarded, it is seen that the Tribunal has awarded
compensation of Rs.4,89,263/- to the claimants. As rightly
pointed by learned counsel appearing for the NWKRTC that
when the petition is filed under Section 163-A of the MV Act,
the Tribunal ought not to have awarded Rs.20,000/- towards
conventional heads but ought to have awarded only Rs.9,500/-.
Hence, the compensation of Rs.20,000/- is reduced to
Rs.9,500/- under conventional heads.
10. Though the Tribunal while discussion has held that
1/4th has to be deducted towards the personal expenses of the
deceased, but while calculating loss of dependency has rightly
MFA No. 20359 of 2012
deducted only 2/3rd towards the personal expenses of the
deceased. The Tribunal also committed an error in adopting
the multiplier of 17 instead of 18 which is the correct multiplier
applicable to the age of the deceased. Hence, taking the
income of Rs.3,330/-, if 1/3rd is deducted, it comes to
Rs.2,220/-. Hence, the total loss of dependency to which the
claimants are entitled comes to Rs.4,79,520/-
(Rs.2,220X12X18).
11. Apart from that the claimants are also entitled to
the medical expenses incurred by them to the extent of
Rs.20,463/- in view of the judgment of this Court in
REGIONAL MANAGER, NEW INDIA ASSURANCE COMPANY
LIMITED VS. VIJAY BALSHIRAM WALUNJ AND OTHERS
(ILR 2012 KAR 335) wherein it has been held that though the
claimants are entitled to the maximum amount of Rs.15,000/-
towards medical expenses under the claim made under Section
163-A of the Act, the actual medical expenses incurred ought to
be granted.
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MFA No. 20359 of 2012
12. In all, the claimants are entitled to a total
compensation of Rs.5,09,483/- as against the sum of
Rs.4,89,263/- awarded by the Tribunal.
13. In view of the above discussions, I pass the
following:
ORDER
i) The appeal is allowed in part,
ii) The judgment and award dated 20.07.2011 passed
by the I Addl. Senior Civil Judge and Addl. MACT,
Gokak, in M.V.C.No.2137/2009 stands modified.
iii) The claimants are entitled to total compensation of
Rs.5,09,483/- as against the sum of Rs.4,89,263/-
awarded by the Tribunal.
iv) The enhanced compensation shall carry interest at
the rate of 6% p.a. from the date of petition till
realization.
v) The order of the Tribunal with regard to
apportionment and release of the amount remains
unaltered.
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MFA No. 20359 of 2012
vi) The amount deposited by the Insurance Company is
ordered to be transmitted to the Tribunal forthwith
and directed to pay the difference amount within
four weeks.
vii) The registry is directed to send back the TCR
forthwith.
As the main matter itself is disposed off, I.A.No.-1/2018
does not survive for consideration.
Sd/-
JUDGE
JM
