Karnataka High Court

The Divisional Controller vs K. Rangaswamy on 6 July, 2023

Bench: S G Pandit, Vijaykumar A.Patil

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                                                       NC: 2023:KHC-D:6811-DB
                                                                      MFA No. 103226 of 2016
                                                                  C/W MFA No. 101306 of 2018




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                  DATED THIS THE 6TH DAY OF JULY, 2023
                                                   PRESENT
                                   THE HON'BLE MR JUSTICE S G PANDIT
                                                     AND
                               THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                        MISCELLANEOUS FIRST APPEAL NO. 103226 OF 2016 (MV-D)
                                                     C/W
                             MISCELLANEOUS FIRST APPEAL NO. 101306 OF 2018

                        IN MFA NO. 103226 OF 2016
                        BETWEEN:
                        THE DIVISIONAL CONTROLLER,
                        NWKRTC HAVERI DEPOT
                        HAVERI,
                        REPRESENTED BY CHIEF LAW OFFICER,
                        NWKRTC CENTRAL OFFICE, HUBBALLI.
                                                                             ...APPELLANT
                        (BY SRI. M.K. SOUDAGAR, ADVOCATE)
                        AND:

                        1.   K. RANGASWAMY
                             S/O. LATE ADIBASAPPA,
                             AGE: 61 YEARS,
                             R/O: DEVALAPURA VILLAGE,
SHIVAKUMAR                   HOSAPETE TALUKA, BALLARI DISTRICT,
HIREMATH                     NOW RESIDING AT KAPPAGAL ROAD,
                             GANDHII NAGAR, BALLARI.
Digitally signed by
SHIVAKUMAR
HIREMATH                2.   SMT.K.SARASWATI
Location: High Court
of Karnataka, Dharwad        W/O. K. RANGAWAMY,
Date: 2023.07.12
13:20:36 +0530               AGE: 47 YEARS,
                             R/O: DEVALAPURA VILLAGE,
                             HOSAPETE TALUKA, BALLARI DISTRICT,
                             NOW RESIDING AT KAPPAGAL ROAD,
                             GANDHII NAGAR, BALLARI.

                        3.   K.CHANNAKESHAVA
                             S/O. R. RANGASWAMY,
                             AGE: 26 YEARS,
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                               NC: 2023:KHC-D:6811-DB
                                              MFA No. 103226 of 2016
                                          C/W MFA No. 101306 of 2018




     R/O: DEVALAPURA VILLAGE
     HOSAPETE TALUKA, BALLARI DISTRICT,
     NOW RESIDING AT KAPPAGAL ROAD,
     GANDHII NAGAR, BALLARI.

4.   K.LAKSHMI
     D/O. K. RANGASWAMY,
     AGE: 23 YEARS,
     R/O: DEVALAPURA VILLAGE
     HOSAPETE TALUKA, BALLARI DISTRICT,
     NOW RESIDING AT KAPPAGAL ROAD,
     GANDHI NAGAR, BALLARI.

5.   PRASANNA KUMAR E.T
     S/O. YAMUNAPPA,
     AGE: 26 YEARS, OCC: BUS DRIVER,
     R/O: GUTTAL VILLAGE,
     HAVERI TALUKA AND DISTRICT,
     NOW MAGALA VILLAGE,
     HADAGALI TALUKA OF BALLARI DISTRICT.
                                                 ...RESPONDENTS

(BY SRI MANJUNATHA G. PATIL, ADVOCATE FOR C/R1 TO R4,)

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.06.2016 PASSED IN MVC NO.62/2015 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, ALLOWING THIS APPEAL WITH COST AND GRANT SUCH OTHER AND/OR FURTHER RELIEF'S, AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA NO. 101306 OF 2018

BETWEEN:

1. K. RANGASWAMY S/O. LATE ADIBASAPPA, AGE: 53 YEARS, R/O: DEVALAPURA VILLAGE HOSAPETE TALUKA, BALLARI DISTRICT, NOW RESIDING AT KAPPAGAL ROAD, GANDHII NAGAR, BALLARI-583101.

NC: 2023:KHC-D:6811-DB MFA No. 103226 of 2016 C/W MFA No. 101306 of 2018

2. SMT.K.SARASWATI W/O. K. RANGASWAMY, AGE: 48 YEARS, HOUSE WIFE, R/O: DEVALAPURA VILLAGE HOSAPETE TALUKA, BALLARI DISTRICT, NOW RESIDING AT KAPPAGAL ROAD, GANDHII NAGAR, BALLARI-583101.

3. K.CHANNAKESHAVA S/O. R. RANGASWAMY, AGE: 27 YEARS, STUDENT, R/O: DEVALAPURA VILLAGE HOSAPETE TALUKA, BALLARI DISTRICT, NOW RESIDING AT KAPPAGAL ROAD, GANDHII NAGAR, BALLARI-583101.

4. K.LAKSHMI D/O. K. RANGASWAMY, AGE: 22 YEARS, STUDENT, R/O: DEVALAPURA VILLAGE HOSAPETE TALUKA, BALLARI DISTRICT, NOW RESIDING AT KAPPAGAL ROAD, GANDHI NAGAR, BALLARI-583101.

...APPELLANTS

(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)

AND:

1. PRASANNA KUMAR E.T S/O. YAMUNAPPA, AGE: 29 YEARS, OCC: KSRTC BUS DRIVER, BEARING REG. NO.KA-42/F-552, BADGE NO. 5331, R/O: GUTTAL VILLAGE, HAVERI TALUKA AND DISTRICT, NOW MAGALA VILLAGE, HADAGALI TALUKA OF BALLARI DISTRICT.

2. THE DIVISIONAL CONTROLLER, NWKRTC HAVERI DEPOT HAVERI-570001.

...RESPONDENTS

(BY. SRI. M.K. SOUDAGAR, ADVOCAT FOR RESPONDENT NO.2;

R1 DISPENSED WITH)

NC: 2023:KHC-D:6811-DB MFA No. 103226 of 2016 C/W MFA No. 101306 of 2018

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.06.2016 PASSED IN MVC NO.62/2015 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEAL, COMING ON FOR ORDERS, THIS DAY, VIJAYKUMAR A. PATIL, J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

MFA No.103226/2016 is filed by the NWKRTC

challenging the quantum as well as liability and MFA

No.101306/2018 is filed by the legal heirs of the deceased

K.Madhukumar seeking for enhancement of the

compensation, being aggrieved by the Judgment and

award dated 28.06.2016 passed by the MACT-XII, at

Ballari in MVC No.62/2015.

2. The facts giving rise to filing of these appeals

are that, on 27.12.2014 one K.Madhukumar, along with

another person were proceeding on motorcycle bearing

registration No.KA-35/W-9038 near National College on

State Highway SH-25 at Hospet. The NWKSRTC bus

bearing registration No.KA-42/F-552 driven by its driver in

a rash and negligent manner dashed to the motorcycle,

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resulted in sustaining grievous injury and subsequent

death of K.Madhukumar. It is averred that, the deceased

was shifted to Government Hospital, Hospete and he was

declared dead. It is further averred that, deceased was

aged about 23 years, he was working as a Senior Grinding

Operator in Team Lease Service Private Limited, Bengaluru

and was drawing salary of Rs.18,709/- per month and he

was contributing his salary to the family and the claimants

were dependent on the income of the deceased and

sought to award compensation.

3. The respondent Nos.1 and 2 have filed written

statement, stating that the claim is not maintainable. It is

averred that, the accident is not caused due to the rash

and negligent driving of the bus bearing registration

No.KA-42/F-552 by its driver and there is no basis to file a

claim petition. It is also averred that, the claim of the

dependents is highly excessive and exorbitant and sought

for dismissal of the claim petition.

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4. The Tribunal has framed the issues, recorded

the evidence of the parties. The appellant-claimant No.1

examined himself as P.W.1, got marked Ex.P.1 to P.8. The

respondent examined R.W.1 and got marked Ex.R.1. The

Tribunal awarded compensation of Rs.17,24,784/- on the

following heads:

1 Towards loss of Rs.16,94,784/-

dependency 2 For the loss of estate Rs.10,000/- 3 For the loss of love and Rs.10,000/-

affection 4 Towards funeral expenses Rs.10,000/-

Total Rs.17,24,784/-

5. Learned counsel Sri. M.K.Soudagar, submits

that, the Tribunal has committed an error in allowing the

claim petition, without appreciating the evidence on record

in its proper perspective. It is submitted that, the

deceased who was the rider of the motorcycle has caused

the accident due to his own rash and negligent driving of

the motorcycle and there is no fault on the part of the

driver of the bus and the Tribunal ought to have fixed the

liability at the ratio of 80% and 20% on the driver of the

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bus and the deceased, respectively. It is further submitted

that, the deceased was proceeding on the motorcycle

while speaking to the pillion rider i.e. one C.D.Taramani,

resulted in accident. Hence, he has contributed to the

negligence. It is also submitted that, the Tribunal has

committed error in assessing the income of the deceased

and awarded higher compensation on other heads. The

Tribunal has calculated the monthly income of the

deceased at Rs.15,521/- by adding other components

which is contrary to the settled principle of law and sought

to allow the appeal filed by the corporation.

6. Per contra, learned counsel Sri. Manjunath G.

Patil, appearing for the appellants/claimants submits that,

the appellants are parents, brother and sister of the

deceased. The deceased was aged about 23 years at the

time of the accident and he was getting salary of

Rs.18,709/-, however, the Tribunal has committed an

error in assessing the income of the deceased at

Rs.15,521/- which is contrary to the evidence on record. It

NC: 2023:KHC-D:6811-DB MFA No. 103226 of 2016 C/W MFA No. 101306 of 2018

is submitted that, the Tribunal has incorrectly awarded

30% under the head of loss of future prospects instead of

40% as the deceased was aged about 23 years. It is

further submitted that, the appellants are entitled for the

compensation under the head of loss of consortium as per

the decision of Hon'ble Supreme Court in the case of

Magma General Insurance Company Limited Vs.

Nanu Ram alias Chuhru Ram and others, reported in

(2018) 18 SCC 130. It is also submitted that, the

Tribunal on appreciation of evidence on record and

considering the fact that, the jurisdictional police have

filed charge-sheet against the driver of the KSRTC Bus,

has held that the driver of the bus was negligent and

responsible for causing the accident in question and

sought to dismiss the appeal filed by the NWKSRTC and

sought to allow the appeal filed by the claimants.

7. We have heard the learned counsels for the

parties, perused the memorandum of appeals and the

Tribunal records.

NC: 2023:KHC-D:6811-DB MFA No. 103226 of 2016 C/W MFA No. 101306 of 2018

8. The points that arise for consideration in the

present appeal are:

(i) Whether the Tribunal is justified in fastening the entire liability on the NWKSRTC?

(ii) What orders?

9. The answer to the above points are in the

affirmative for the following reason:

(a) There is no dispute with regard to the fact that

on 27.12.2014 road accident has taken place between the

motorcycle bearing registration No.KA-34/W-9038 and

NWKSRTC Bus bearing registration No.KA-42/F-552 and in

the said accident one Sri. K.Madhukumar has died. It is

also not in dispute that, the appellant claimants have filed

claim petition before the Tribunal seeking compensation

for the death of said Sri. K.Madhukumar in the road

accident dated 27.12.2014.

(b) The contention of the NWKSRTC that, the

Tribunal has committed an error in fastening the entire

liability on the NWKSRTC, and it ought to have fastened

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NC: 2023:KHC-D:6811-DB MFA No. 103226 of 2016 C/W MFA No. 101306 of 2018

the liability at the ratio of 80% and 20% on the driver of

the bus and the deceased. To appreciate the said

contention, it would be necessary to look into the evidence

on record. To substantiate the claim of liability and

quantum the appellants/claimants have examined

appellant No.1 himself as P.W.1. P.W.1 has categorically

stated that the accident has caused due to the negligence

of the driver of the NWKSRTC. In the cross-examination,

P.W.1 is consistent with regard to his stand taken in the

examination-in-chief. P.W.1 in his cross-examination has

deposed that, lady Tara is neither his relative or friend of

his son. He has further deposed that it is not true to

suggest that the accident was due to rash and negligent

act of deceased son. On close scrutiny of the evidence of

the P.W.1 he is consistent insofar as his stand that, the

accident is caused due to the negligence of the driver of

the NWKRTC.

(c). It is not in dispute that, the jurisdictional police

have registered the crime immediately after the accident

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and took up the investigation. They have filed charge

sheet against the driver of NWKRTC Bus. When things

stood thus, it cannot be disputed with regard to the fact

that the accident caused due to the rash and negligent

driving of the NWKSRTC bus by its driver. There is no iota

of evidence on record to say that, the deceased was

negligent in riding the motorcycle. The contention of Sri.

Soudagar, learned counsel that R.W.2 who was the driver

of the Bus has deposed that, the deceased was chatting

with a lady and without noticing that a bus is coming from

the opposite direction, overtook the car has resulted in the

accident. The said contention is considered only for the

purpose of rejection for the reason that, the evidence of

R.W.1 cannot be accepted as gospel truth. R.W.1 is

interested witness in the proceeding as the jurisdictional

police have filed charge-sheet against him and he is bound

to depose which is favourable to himself and respondent.

This Court cannot give any weightage to the testimony of

R.W.1 in the absence of any corroborative evidence to

support the stand of NWKRTC. The NWKRTC has not

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examined any independent witness to substantiate their

claim. In our considered view, the Tribunal has recorded

a categorical finding that the driver of the bus was

negligent and caused the accident in question, the Tribunal

proceeded to fasten the entire liability on the NWKRTC.

The said finding of the Tribunal is neither perverse nor

contrary to the evidence on record, calling for interference

in the appeal filed by the NWKRTC.

(d) Insofar as quantum of compensation is

concerned, the Tribunal has assessed the income of the

deceased at Rs.15,521/-. In our considered view the

Tribunal has committed an error in assessing the income

of the deceased at Rs.15,521/- contrary to the evidence

on record. The appellants in support of their claim have

examined one Sri. S.Krishnamraju, a Junior Engineer,

working in JSW, Toranagal, who has deposed that, the

deceased was drawing Rs.19,032/- as a salary and got

marked Ex.P.6 - the pay slip for the month of November,

2014 and also produced the pay slip of October, 2014

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which was marked as Ex.P.9. On bare perusal of Ex.P.6 -

payslip for the month of November, 2014 it is evident that

the total earning is shown as Rs.18,709/- and the Tribunal

ought to have deducted Rs.200/- as a professional tax

from the total earning and not other components. It has

committed grave error in deducting other components

from the salary of the deceased. In our considered view,

after deducting professional tax from the total earning of

the deceased, the income would be Rs.18,509/-. Hence,

we assess the income of the deceased at Rs.18,509/-.

(e) The Tribunal has committed an error in

awarding 30% under the head 'loss of future prospects'.

The Hon'ble Supreme Court in the case of National

Insurance Company Limited Vs. Pranay Sethi and

others, reported in (2017) 16 SCC 680 has held that, if

the deceased is less than 40 years and employed on fixed

salary would be entitled 40% addition to the assessed

income under the head of future prospects. In the instant

case, the deceased was aged about 23 years at the time of

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the accident and was employed on fixed salary. Hence, the

appellants/claimants are entitle for the compensation

under the head of future prospects at the rate of 40%,

instead of 30% awarded by the Tribunal.

(f) The Tribunal has incorrectly applied '14' as a

multiplier. The appellant at the time of accident was aged

about 23 years. The appropriate multiplier would be '18'.

Therefore, the appellant-claimants would be entitled for

the following compensation towards loss of dependency:

Rs.18,509/-+40% = Rs.25,913/-

Rs.25,913/- - Rs.12,957/- (50% deduction) =Rs.12,956/-

Rs.12,956/- x 12x 18 = Rs.27,98,496/-

(g) The claimants being the parents, brother and

sister are entitle for the loss of consortium at Rs.40,000/-

each as held by the Hon'ble Supreme Court in the case of

Magma General Insurance Company Limited (supra).

The claimants are entitle for Rs.15,000/- towards the loss

of estate and Rs.15,000/- towards the transportation of

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dead body and funeral expenses. The appellant was a

bachelor. Hence, the Tribunal has rightly deducted 50% of

the assessed income towards the personal and living

expenses of the deceased. The compensation is

determined as under:

(h) Thus, the appellants-claimants would be

entitled for modified compensation on the following heads:

   Sl.              Particulars                   Amount
   No.

   1.      Loss of dependency                    Rs.27,98,496/-

   2.      Transportation of dead body               Rs.15,000/-
           and funeral expenses

   3.      Loss of Estate                            Rs.15,000/-

   4.      Loss of consortium                      Rs.1,60,000/-

                                    Total      Rs.29,88,496/-

         Compensation awarded by the            Rs.17,09,784 /-
            Tribunal. (After deducting
            Rs.15,000/- as ex-gratia)

                Enhanced compensation          Rs.12,78,712/-
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                                         NC: 2023:KHC-D:6811-DB
                                                      MFA No. 103226 of 2016
                                                  C/W MFA No. 101306 of 2018




        10.   Thus,     the       appellants-claimants         would      be

entitled to total compensation of Rs.29,88,496/- as

against Rs.17,24,784/- awarded by the Tribunal.

11. For the aforesaid reasons, we pass the

following:

ORDER

(i) M.F.A.No.103226/2016 filed by the NWKSRTC is dismissed.

(ii) M.F.A.No.101306/2018 filed by the claimants is allowed in part.

(iii) The impugned judgment and award dated 28.06.2016 passed by the MACT-XII, at Ballari, in M.V.C.No.62/2015 is modified and appellant- claimants are entitled for enhanced compensation of Rs.12,78,712/- with interest at the rate of 6% per annum from the date of claim petition till date of realization.

(iv) The NWKSRTC shall deposit the entire compensation with accrued interest before the Tribunal within a period of six weeks from the

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