The Divisional Controller vs Jahida W/O Abdul Razak Choudhary ...
2023 Latest Caselaw 697 Kant

       IN THE HIGH COURT OF KARNATAKA
              KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF JANUARY, 2023
                       PRESENT
 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
                          AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

  MISCELLANEOUS FIRST APPEAL NO.200037/2020
                  (MV) C/W
  MISCELLANEOUS FIRST APPEAL NO.202710/2019
                    (MV)

IN MFA No.200037/2020

BETWEEN:

1.    Jahida W/o Abdul Razak Choudhary,
      Age: 44 years, Occ: Household work,
      R/o: Rahimnagar, Near Ameer Masjid,
      Vijayapur-586101.

2.    Abdul Razak S/o Abdul Gafursab Choudhary,
      Age: 47 years, Occ: Coolie,
      R/o: Rahimnagar, Near Ameer Masjid,
      Vijayapur-586101.

3.    Malan D/o Abdul Razak Choudhary,
      Age: 12 years, Occ: Student,
      R/o: Rahimnagar, Near Ameer Masjid,
      Vijayapur-586101.
                                            ... Appellants
(By Sri Sanganabasava B.Patil, Advocate)
                                         MFA No.200037/2020
                                    C/w MFA No.202710/2019
                              2



AND:

The Divisional Controller,
NWKRTC, Vijayapur Division,
Vijayapur-586101.                           ... Respondent

(By Smt. Preeti Patil Melkundi, Advocate)

      This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to modify the judgment and
award passed by the Court of III Additional Senior Civil
Judge & MACT No.XII Vijayapur at Vijayapur in MVC
No.792/2018 dated 05.10.2019 and be pleased to allow
the claim petition by granting the relief as prayed for by
the appellants herein in the interest of justice and equity.

In MFA No.202710/2019

BETWEEN:

The Divisional Controller,
NWKRTC,
Vijaypur Division,
Vijaypur.
(Now in NEKRTC represented by
Authorized Signatory, Kalaburagi)
                                                ... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)

AND:

1.     Jahida W/o Abdul Razak Choudhary,
       Age: 43 years, Occ: Household,
       R/o: Rahimnagar, Near Ameer Masjid,
       Vijaypur-586101.

2.     Abdul Razak S/o Abdul Gafursab Choudhary,
       Age: 46 years, Occ: Coolie,
       R/o: Rahimnagar, Near Ameer Masjid,
                                         MFA No.200037/2020
                                    C/w MFA No.202710/2019
                             3



      Vijaypur-586101.

3.    Malan D/o Abdul Razak Choudhary,
      Age: 11 years, Occ: Student,
      U/G of respondent No.1 herein,
      R/o: Rahimnagar, Near Ameer Masjid,
      Vijaypur-586101.                 ... Respondents

(By Sri Sanganabasava B.Patil, Adv. for respondents;
R3 is minor U/g of Respondent No.1)

       This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to allow the above appeal by
setting aside the impugned judgment and award dated
05.10.2019 in MVC No.792/2018 passed by the IIIrd Addl.
Senior Civil Judge and MACT XII at Vijaypur, in the interest
of justice and equity.

      These   appeals    coming   on    for     Hearing,
through physical hearing/video conference, this day
T.G.Shivashankare Gowda, J., delivered the following:

                       JUDGMENT

In these appeals, the appellants have challenged

the judgment dated 05.10.2019 passed in

M.V.C.No.792/2018 on the file of the III Additional

Senior Civil Judge and Motor Accident Claims Tribunal

No.XII, Vijaypur (Hereinafter referred to as 'Tribunal'

for short).

MFA No.200037/2020 C/w MFA No.202710/2019

2. The appellants in MFA No.200037/2020

were the petitioners and the appellant in the

connected appeal in MFA No.202710/2019 was the

respondent before the Tribunal. The parties will be

referred with respect to their status before the

Tribunal for the sake of convenience.

3. Briefly stated, the facts are that, the 1st

and 2nd petitioners are the parents and the 3rd

petitioner is sister of Hatim, the deceased. The

deceased suffered fatal injuries in a road accident that

took place on 31.01.2018 at 9-30 p.m. near

Jamakhandi Cross on Navabag road hit by a KSRTC

bus bearing No.KA-28/F-2293 against his motor cycle

bearing No.KA-28/R-1911. He succumbed to the

injuries at Yashodhara Hospital, Solapur on

01.02.2018. The petitioners claimed compensation of

Rs.30 lakhs. The claim was opposed by the

respondent. The Tribunal awarded Rs.9,05,768/- with MFA No.200037/2020 C/w MFA No.202710/2019

interest @ 6% per annum from the date of petition till

its realization.

4. The petitioners have pleaded inadequacy in

the compensation awarded by the Tribunal. The

respondent is also before this Court on the grounds

that the entire liability is fastened against it, even

though the deceased did not hold a valid driving

licence, he has also contributed for the accident,

income of Rs.8,000/- taken is on the higher side.

5. According to the learned counsel for

petitioners, the deceased was a Painter and doing

contract work, earning an income of Rs.20,000/- per

month and accordingly, he sought for reassessment

and enhancement.

6. Per contra, learned counsel for the

respondent has contended that the accident occurred

due to negligence on the part of the deceased, who MFA No.200037/2020 C/w MFA No.202710/2019

raided the motor cycle without holding the driving

licence; there was a contributory negligence and it

ought to have been assessed by the Tribunal.

Learned counsel further submitted that in the absence

of proof of income, Rs.8,000/- taken is on higher side

and sought for reducing the income to Rs.6,000/- and

for re-assessment of the compensation by attributing

contributory negligence against the deceased.

7. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

8. There is no dispute as to the accident,

cause of the accident, death of the deceased in the

accident and the petitioners being the parents and

unmarried sister of the deceased entitled to claim the

compensation.

9. As seen from the records, accident was of

the year 2018, the deceased was aged 21 years, he MFA No.200037/2020 C/w MFA No.202710/2019

was said to be a painter and contractor, but there is

no proof of his avocation and income. In the year

2018, having regard to the Minimum Wages Act, it can

be said that one can earn more than Rs.11,000/- per

month. Hence, there is a substance in the submission

made on behalf of the petitioners and it is not possible

to accept the contention of the respondent to reduce

the income. Since the deceased was in the earning

age and having regard to his avocation, his income

shall not be less than Rs.11,750/- per month and

accordingly it has to be taken into consideration.

10. As seen from the impugned judgment, the

Tribunal has not considered the future prospects.

Hence, by applying the principles laid down in

National Insurance Company Limited vs. Pranay

Sethi and Others -2017 ACJ 680, future prospects

should be taken as 40% for the age below 40 years.

Having regard to the age of the deceased, who was 21 MFA No.200037/2020 C/w MFA No.202710/2019

years, future prospects of 40% has to be added to the

income.

11. In view of the judgment in Sarla Verma v.

Delhi Transport Corporation (2009)6 SCC 121,

the applicable multiplier is '18' for the age of 21.

Accordingly, compensation has to be calculated.

12. It is pertinent to note that, the Tribunal has

not properly assessed the compensation on

conventional heads, as it has assessed Rs.15,000/-

towards loss of love and affection. The amount of

Rs.11,768/- assessed towards medical expenses is

proper, which could be considered. If all these factors

are taken into consideration, the assessment of loss of

dependency would be: Rs.11,750+Rs.4,700/-=

Rs.16,450/-. The deceased was a bachelor, since

there are three members in the family, 50% has to be

deducted towards personal expenses. Hence,

Rs.8,225/- has to be deducted towards personal MFA No.200037/2020 C/w MFA No.202710/2019

expenses of the deceased. It comes to Rs.8,225/-

x12x18=Rs.17,76,600/-. Under the conventional

heads, each of the petitioners is entitled to

Rs.40,000/- towards loss of love and affection.

Towards loss of estate Rs.15,000/-, funeral expenses

at Rs.15,000/- and Rs.11,768/- towards medical

expenses. The total compensation comes to

Rs.18,98,368/-, which is the adequate compensation

to which the petitioners are entitled.

13. Adverting to the grounds urged in the

connected appeal, we have carefully perused the

pleadings of the respondent. Except denial of the

accident, income of the deceased, there is no plea

regarding the deceased not holding driving licence,

the deceased contributing for the accident. Even on

perusal of the evidence relied upon by the respondent,

there is nothing available for acceptance of these MFA No.200037/2020 C/w MFA No.202710/2019

aspects. Hence, without any plea or evidence, the

claim of the respondent has to be appreciated.

14. As could be seen from the impugned

judgment, the Tribunal has discussed the manner of

accident and has recorded a finding that the accident

was solely on account of actionable negligence on the

part of the driver of the KSRTC bus. Merely because

the rider of the motor cycle did not hold a driving

licence, it is not a ground to attribute contributory

negligence without any proof of it. Hence, we do not

find any reason to justify the grounds urged in the

appeal. Therefore, the appeal preferred by the

respondent/KSRTC is devoid of merits and is liable to

be dismissed and the appeal filed by the petitioners

deserves to be allowed.

15. In the result, we pass the following;

MFA No.200037/2020 C/w MFA No.202710/2019

ORDER

The appeal in MFA No.202710/2019 filed by the KSRTC is dismissed.

The appeal in MFA No.200037/2020 is allowed in part. The judgment and award passed by the Tribunal is modified by enhancing the compensation from Rs.9,20,768/- to Rs.18,98,368/-, thereby enhancement of Rs.9,77,600/-.

The petitioners are entitled to enhanced compensation of Rs.9,77,600/- with interest at the rate of 6% per annum.

Rest of the judgment and award of the Tribunal is kept intact.

Office is directed to transfer the amount if any in deposit, to the Tribunal, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE KNM/-