Karnataka High Court
The Managing Director, Nwkrtc vs Smt. Satyavva W/O Somaraye Mahipati on 8 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 101407 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101407 OF 2022 (MV-D)
BETWEEN:
1. THE MANAGING DIRECTOR, NWKRTC,
CENTRAL OFFICE, GOKUL ROAD,
HUBBALLI-580030
OWNER AND SELF INSURER OF
BUS NO.KA-25/F-3303)
REPRESENTED BY CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICE HUBBALLI
...PETITIONER
(BY SRI. S C BHUTI, ADVOCATE)
AND:
1. SMT. SATYAVVA W/O SOMARAYE MAHIPATI
AGE. 30 YEARS, OCC. HOUSEHOLD WORK,
Digitally
signed by
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
2. KUM. DEEPALI D/O SOMANNA MAHIPATI
Date:
2023.12.14
12:08:42
+0530
AGE. 9 YEARS, OCC. STUDENT,
3. KUMAR SHIVAKUMAR S/O SOMANNA MAHIPATI
AGE. 6 YEARS, OCC. NIL,
4. KUMAR SIDDU S/O SOMANNA MAHIPATI
AGE. 5 YEARS, OCC. NIL,
5. KUMAR MANJU S/O SOMANNA MAHIPATI
AGE. 8 MONTHS, OCC: NIL
RESPONDENTS NO.2 TO 5 ARE SINCE MINORS
REPRESENTED BY THEIR NATURAL MOTHER AS
M/G.-SMT. SATYAVVA W/O SOMARAYE MAHIPATI
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MFA No. 101407 of 2022
RESPONDENT NO.1
6. LAXMAN S/O HEBBULI MAHIPATI
AGE. 61 YEARS, OCC. NIL,
7. SMT. MALLAVVA W/O LAXMAN MAHIPATI
AGE. 56 YEARS, OCC. HOUSEHOLD WORK
ALL ARE R/O. SADLAGA,
CHIKKODI TQ.
BELAGAVI DISTRICT,
NOW AT SHIVAPUR,
HANGAL TALUK
HAVERI DISTRICT-581104
...RESPONDENTS
(BY SRI.HARISH S.MAIGUR, ADVOCATE FOR R1 TO R7;
R2 TO R5 ARE MINOR R/B R1)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 10.01.2022
PASSED IN MVC NO.108/2021 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HANGAL,
AWARDING COMPENSATION OF Rs.33,01,800/- WITH INTEREST AT 9
PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the corporation challenging the
Judgment and award dated 10.01.2022 passed in MVC
No.108/2021 by the Additional Senior Civil Judge, JMFC
and MACT, Hangal, whereby, the respondents' claim
petition was allowed by awarding a total compensation of
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Rs.33,01,800/- along with interest at the rate of 9% per
annum from the date of petition till realization.
2. Brief facts leading to filing of this appeal are
that, the respondents herein have filed a claim petition
before the tribunal seeking compensation stating that, on
15.12.2020, the deceased Somanna Mahipati was
proceeding on the motorcycle bearing registration No.KA-
15/Q-5769 on the left side of the road near Harikere bus
stand on Honnavar-Harihar road, at that time the driver of
the appellant-corporation bus drove the said bus bearing
registration No.KA-25/F-3303 from Honnalli side in a rash
and negligent manner, dashed the motorcycle which
resulted in sustaining fatal injuries to the deceased
Somanna, later he succumbed to those injuries. It is
averred that, the deceased was the sole bread earner of
the family, the claimants are the dependents of the
deceased and the deceased was aged about 32 years,
doing shepherd work and was earning more than
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Rs.10,00,000/- per annum, he used to contribute the said
amount to the family.
3. The respondents have opposed the claim
petition contending that, the accident has happened due to
the negligence of the deceased and there was no
negligence on the part of the offending vehicle. They have
denied the age, income and avocation of the deceased and
sought for dismissal of the claim petition.
4. The tribunal framed issues, recorded the
evidence of the parties. Wife of the deceased has been
examined as P.W.1 and got marked Ex.P.1 to Ex.P.14. The
appellant examined its driver and got marked Ex.R.1 to
R3. The tribunal considering the evidence available on
record has proceeded to award compensation in favour of
the claimants. Being aggrieved by the fastening of the
entire liability on the corporation as well challenging the
quantum of compensation, the present appeal has been
filed.
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5. Sri. S.C.Bhuti, learned counsel appearing for
the appellant submits that, the tribunal has committed a
grave error while appreciating the evidence on record. It is
submitted that, the accident has occurred on 15.12.2020
and the brother of the deceased has filed a complaint on
the very next day i.e. on 16.12.2020 and it is the case of
head on collision between two vehicles. The evidence on
record clearly establishes that the rider of the motorcycle
came on the extreme right side of his and hit the
corporation bus on the left side which clearly establishes
that, the rider of the motorcycle while overtaking the
tractor has came extreme right of the road and hit the
corporation bus which was moving from opposite direction.
Hence, the tribunal ought to have fixed the liability on the
rider of the motorcycle instead of fastening the entire
liability on the appellant-corporation.
6. It is submitted that, the driver of the bus has
sent a complaint through registered post on 17.12.2020 as
the police have refused to register the FIR based on the
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information furnished by the driver. It is also submitted
that, the jurisdictional police after completion of the
investigation have filed charge-sheet against the driver of
the offending bus, as well as against the deceased and
the owner of the motorcycle. He seeks to fasten at least
50% of the liability on the rider of the motorcycle on the
ground that, he was negligent in riding the motorcycle
which has resulted in causing the accident in question. It
is further contended by Sri. Bhuti that, the tribunal has
committed further error in awarding compensation on
conventional heads and the award of compensation by the
tribunal is contrary to the well settled principles of law.
The award of interest at the rate of 9% is exorbitant and
without any basis. It is also contended that, the appellant-
corporation has paid Rs.25,000/- as an interim
compensation to the claimants which has not been taken
note of by the tribunal while awarding compensation. He
seeks to allow the appeal.
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7. Per contra, Sri. Harish S. Maigur, appearing for
the claimants supports the impugned Judgment and award
of the tribunal and submits that, immediately after the
accident in question the brother of the deceased has filed
a complaint and based on the complaint the jurisdictional
police have investigated the crime and filed charge-sheet
against the driver of the bus for his negligent act. The
filing of the charge-sheet against the deceased is only with
regard to not possessing driving licence on the date of the
accident and not for the negligence. It is submitted that,
R.W.1 who is the rider of the bus has clearly admitted in
his cross-examination that the jurisdictional police have
filed charge-sheet against him, hence, there cannot be any
liability or the contribution of the deceased to the accident
in question. He seeks to dismiss the appeal.
8. Having heard the learned counsel for the
appellant-corporation, the learned counsel for the
respondents-claimants, perused the memorandum of
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appeal and the tribunal records, the points that arise for
consideration in this appeal are:
(i) Whether the tribunal was justified in
fastening the entire liability on the appellant?
(ii) Whether the award of compensation by
the tribunal is just and proper?
9. Answer to the point No.1 is in the affirmative
and answer to point No.2 is in the negative for the
following reasons:
(a) There is no dispute with regard to the road
traffic accident taken place on 15.12.2020 between the
motorcycle bearing registration No.KA-15/Q-5769 which
was ridden by the deceased and the appellant-corporation
bus bearing registration No.KA-25/F-3303. Also it is not in
dispute that, the respondents who are the claimants
before the tribunal filed a claim petition for compensation.
(b) The contention of the appellant that the tribunal
has committed an error in fastening the entire liability on
the corporation is required to be rejected at the threshold
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for the reason that, admittedly, the jurisdictional police
after completion of the investigation based on the
complaint submitted by the brother of the deceased have
filed a charge-sheet against the driver of the bus for his
negligent act. Admittedly, the filing of the charge-sheet
against the deceased is only with regard to the fact that,
the deceased did not possess the driving licence on the
date of the accident. The charge-sheet filed by the police
against the driver of the bus is not challenged by the
corporation nor by the driver, further the driver of
corporation bus has been admitted in his cross-
examination of R.W.1 that, charge-sheet is filed against
him.
(c) On perusal of the material available on record,
it is evident that, the appellant-corporation nor the police
have made any attempt to find out whether the deceased
was possessing valid and effective driving licence as on
the date of the accident by sending notice to the claimants
or to the jurisdictional RTO. It is not in dispute that the
criminal case registered against the driver of the
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corporation is pending before the jurisdictional Court.
Merely, the filing of the charge-sheet against the deceased
for not possessing the driving licence as on the date of the
accident ipso facto would not constitute contributory
negligence on the part of the deceased. The appellant-
corporation has placed reliance on the complaint filed by
the driver dated 17.12.2020 at Ex.R1 and the MVI Report
at Ex.P.7 to contend that, the driver of the bus has also
taken steps to register the complaint to establish the
factum that he was not negligent in driving the bus and it
is the rider of the motorcycle who was negligent.
Admittedly, neither the corporation nor the R.W.1 have
taken any steps to pursue the said complaint to its logical
end nor have they made any attempt to challenge the
charge-sheet filed against the driver of the bus. In the
absence of any such attempt, it would be difficult to accept
the contention of the appellant-corporation that the rider
of the motorcycle was negligent and has contributed to the
accident in question.
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(d) Insofar as the damage to the bus reflected at
Ex.P.7 is concerned, no doubt on perusal of Ex.P.7, it is
shown that on the left side of the bus, a damage is
caused, however, there is no other independent or
corroborative evidence available on record to substantiate
as to how front left side of the bus is damaged. Merely, on
the basis of Ex.P.7 and in the absence of any independent
and corroborative evidence on record, this Court cannot
come to a conclusion that, the causing of damage on the
left side of the bus should be inferred as a negligence on
the part of the rider of the motorcycle. The tribunal while
considering Issue No.1 has given its reasons for fastening
the entire liability on the appellant-corporation. The
reasoning adopted by the tribunal is neither perverse nor
contrary to the evidence available on record, calling for
any interference in this appeal.
(e) Insofar as award of compensation, this Court on
perusal of the reasoning adopted by the tribunal at
paragraph No.27, it is prima-facie evident that, the
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tribunal has proceeded to award the compensation for loss
of consortium contrary to the law laid down by the Hon'ble
Supreme Court. Respondents/claimants are the legal heirs
of the deceased, hence, each of the respondents are
entitled for consortium at the rate of Rs.40,000/- as held
by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram,
reported in (2018) SCC 130.
(f) The respondents/claimants are entitled to
Rs.15,000/- under the head of transportation of dead body
and funeral expenses and Rs.15,000/- under the head of
loss of estate
(g) The tribunal has also committed an error in
awarding interest at the rate of 9% per annum. This Court
modifies the rate of interest at 6% per annum taking note
of the interest rates fixed by the Nationalized Bank on the
term deposits.
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(h) The tribunal has committed an error in not
deducting Rs.25,000/- which was paid as an interim
compensation by the appellate-Corporation. It is evident
from the interim compensation payment receipt made
available by the appellant that, the appellant has paid
Rs.25,000/- as an interim compensation to the
respondents. Hence, while drawing decree, Rs.25,000/-
shall be deducted from the total compensation amount.
(i) This Court re-determines the compensation
based on the available material on record as under:
1 Loss of dependency Rs.29,56,800/-
2 Loss of consortium Rs.40,000/- X 7 Rs.2,80,000/-
3 Towards funeral expenses Rs.15,000/-
4 Towards loss of estate Rs.15,000/-
Total Rs.32,66,800/-
Compensation awarded by the Rs.33,01,800/-
tribunal
Reduction in compensation Rs.35,000/-
awarded by the tribunal
(10) Hence, we pass the following:
ORDER
i. The appeal is allowed in part;
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ii. The judgment and award dated
10.01.2022 passed in MVC No.108/2021
by the Additional Senior Civil Judge and
JMFC and AMACT, Hangal, is set aside and
is modified to the extent that the
claimants/respondents would be entitled
to total compensation of Rs.32,66,800/-
as against Rs.33,01,800/- awarded by the
tribunal. The total compensation awarded
by the tribunal is Rs.33,01,800/-. The
same is reduced to Rs.32,66,800/-.
iii. The compensation amount shall carry
interest at the rate of 6% per annum from
the date of petition till the date of
payment;
iv. The apportionment among the claimants
would be as per the order of the tribunal;
v. Respondent-Corporation shall deposit the
compensation amount along with accrued
interest before the Tribunal within a period
of six weeks from the date of receipt of
certified copy of this judgment;
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vi. The amount deposited before this Court
shall be transmitted along with original
records, forthwith;
vii. Registry to transmit the records, if any, to
the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
