Karnataka High Court
The Managing Director,Nwkrtc vs Smt. Reshma on 29 March, 2023
Bench: Dr.H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH 2023
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL No.4288 OF 2020 (MV-D)
BETWEEN:
The Managing Director,
NWKRTC, Hubli,
(Chikkodi Division),
Chikkodi Taluk,
Belgaum District,
Now through Chief Law Officer,
N.W.K.R.T.C.,
Bangalore. .. Appellant
( By Sri Nagaraja K., Advocate )
AND:
1. Smt.Reshma,
W/o Late Shahid @ Shahid Baig,
Aged about 41 years, House Wife,
2. Samreen,
D/o Late Shahid Baig,
Aged about 21 years,
3. Athaulla,
S/o Late Shahid Baig,
Aged about 18 years,
2 MFA.No.4288/2020
4. Fiza,
D/o Late Shahid Baig,
Aged about 17 years,
5. Mubarak
D/o Late Shahid Baig,
Aged about 14 years,
No.4 & 5 are minors,
Represented by mother No.1 above.
6. Farahath Unnisa,
W/o. Karim Baig,
Aged about 73 years,
All R/o. E Block, Ashraya Badavane,
Bommanakatte,
Shimoga.
7. Sri Ramesh Ramanal,
S/o Basappa,
Aged about 31 years,
Driver KSRTC Bus,
Badge No.558/7334,
Rural Depot No.1, Hubli Division,
Yarrikoppa village,
Dharwad Tq. & Dist.
(Driver of KSRTC Bus No.KA-23-F-765)
D.L.No.2520090010655. .. Respondents
( By J.D.Kashinath, Advocate for R-1, R-3 & R-6,
R-4 and R-5 Minors, represented by Respondent No.1)
This Miscellaneous First Appeal is filed under Section 173(1)
of M.V.Act praying to set aside the judgment and award passed by
the Court of I Addl.Senior Civil Judge and Addl.Motor Accident
Claims Tribunal VII at Shimoga in MVC.No.634/2017, dated
02.12.2019 and to grant such other relief as this Hon'ble Court
deems fit to grant in the facts and circumstances of the case
3 MFA.No.4288/2020
including the costs of the case in the best interest of equity,
justice and law.
This Miscellaneous First Appeal having been heard through
Physical Hearing/Video Conferencing, reserved for Judgment on
14.03.2023, coming on for pronouncement this day, the Court
delivered the following:
JUDGMENT
The present appellant - North-West Karnataka Road
Transport Corporation (hereinafter referred to as the
`Corporation' for brevity) was respondent No.2 in
M.V.C.No.634/2017, in the Court of learned I Addl.Senior
Civil Judge and Addl.Motor Accident Claims Tribunal-VII, at
Shivamogga, (hereinafter referred to as `the Tribunal' for
brevity), which was instituted by the present respondent
Nos.1 to 6, who, as a claimants instituted a claim petition
under Section 166 of the Motor Vehicles Act, 1988, seeking
compensation of a sum of `66,55,000/-.
2. The summary of the case of the claimants before the
Tribunal was that on the date 21.06.2016, at about 2.15 p.m.,
when Sri Shahid Baig, who was the husband of claimant No.1,
father of claimant Nos.2, 3, 4 and 5 and son of claimant
Nos.6 and 7, was returning from Tarikere to Shivamogga in a
motorcycle bearing registration No.KA-14-EL-5172, at that
time, a KSRTC bus bearing registration No.KA-23-F-765,
coming from opposite direction in National Highway-206 and
being driven by its driver in a rash and negligent manner,
dashed to the motorcycle of Shahid Baig near Gante Kanive.
Due to the said road traffic accident, the rider Shahid Baig
fell down, sustained injuries and succumbed to the same.
The claimants claiming that the deceased was the sole earner
in the family and that they are the dependants upon him,
claimed a compensation in a sum of `66,55,000/- from
respondent Nos.1 and 2, holding them as liable to them as
the driver and owner-cum-insurer of the alleged offending
vehicle respectively.
3. The respondent Nos.1 and 2 in response to the
summons served upon them, appeared before the Tribunal
and filed their statement of objections. The respondent No.1
took a contention that he was driving the alleged offending
bus in a normal speed by observing all traffic rules. It was
the rider of the motorcycle who was riding his motorcycle in a
rash and negligent manner. He also contended that the
deceased rider had no valid driving licence. While riding the
motorcycle, he became panic and he himself dashed to the
bus, resulting in an accident. Even respondent No.2 also
took the similar contention in its statement of objections.
4. Before the Tribunal, claimant No.1 - wife of the
deceased got herself examined as PW-1 and got marked
documents from Exs.P-1 to P-9. On behalf of respondents,
the driver of the bus was examined as RW-1 and one
document was got marked as Ex.R-1.
5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the compensation
to the claimants under the following heads with the sum
shown against them:
Sl.
Particulars Amount in `
No.
1 Loss of dependency 15,05,280/-
2 Loss of consortium 40,000/-
3 Love and affection 80,000/-
4 Loss of estate 15,000/-
5 Transportation of dead body, 30,000/-
funeral expense charges and
miscellaneous expenses
Total 16,70,280/-
(rounded off
to
`16,70,300/-)
6. The Tribunal awarded compensation of a sum of
`16,70,300/- with interest at `6% per annum thereupon from
the date of petition till its realisation, holding the respondent
No.2 (appellant herein) and respondent No.1 before the
Tribunal as jointly and severally liable to pay the
compensation and directed respondent No.2 before it
(appellant herein), who is the owner-cum-insurer, to deposit
the award amount. Challenging the said judgment and award
passed by the Tribunal, the appellant - Corporation has
preferred this appeal.
7. Learned counsel for the appellant -Corporation in
his argument submitted that the accident has occurred in the
middle of the road. Further the damages has been caused to
the front side of the motorcycle and on the right front side of
the bus, which itself would go to show that there is
contributory negligence on the part of rider of the motorcycle
also in causing the road traffic accident. He submitted that
40% of the contributory negligence was required to be
fastened upon the deceased - rider of the motorcycle, which
the Tribunal has failed to do.
8. Per contra, learned counsel for the respondents-
claimants in his argument submitted that there is no
evidence to arrive at the conclusion that there was any
contributory negligence on the part of rider of the
motorcycle. As such, the Tribunal has rightly fastened the
sole liability upon the driver of the bus. With this, he
submitted that the impugned judgment and award does not
warrant any interference at the hands of this Court.
9. On behalf of the claimant, the claimant No.1
Smt.Reshma, who is said to be wife of the deceased-rider of
the motorcycle, got herself examined as PW-1. Admittedly,
she is not an eye witness to the alleged road traffic accident.
Therefore, her evidence is solely based upon hearsay and the
documents which she has got produced and marked from
Exs.P-1 to P-9. Though her evidence, coupled with Exs.P-1
to P-9, which inter alia includes the copies of the complaint,
FIR, scene of offence panchanama (spot mahazar), inquest
panchanama, post mortem report, Motor Vehicle Inspector's
report and the charge sheet, would go to show about the
occurrence of the road traffic accident and the police
registering a crime against the present respondent No.7
(driver of the bus) in their station Crime No.242/2016, for
the offences punishable under Sections 279, 304-A of Indian
Penal Code, 1860, (hereinafter for brevity referred to as
`IPC'), however, the evidence of the said driver as RW-1 is
that the accident in question has occurred solely due to the
rash and negligent riding of the motorcycle by the deceased
Shahid Baig, who become panic after seeing the bus and
failing to control his motorcycle, came and dashed to the bus.
However, in order to ascertain the truthfulness in the
evidence of PW-1 and RW-1 about the manner of occurrence
of accident, it is only the documents at Exs.P-1 to P-9 and
Ex.R-1 are required to be considered.
10. Though the charge sheet at Ex.P-9 accuses the
driver of the bus (respondent No.7 herein) for the offences
punishable under Sections 279, 304-A of IPC, however, the
certified copy of the judgment passed in the said case, which
was tried in C.C.No.360/2016 by the competent Magistrate
Court, would go to show that the driver of the bus was
acquitted of the alleged offences.
Further, the scene of offence panchanama at Ex.P-4
shows that the accident has occurred in the middle of the
road just beside the white line on the centre of the road.
Therefore, the say of PW-1 that deceased was coming on its
extreme left side of the road and that the bus coming from
the opposite direction, came to its extreme right and dashed
to the motorcycle of the deceased, proves to be false. On
the other hand, deceased, who was riding a motorcycle, has
gone to the right side, may be simultaneously, the bus in
question which was coming from the opposite direction also
appears to be on its right side, which has resulted in head-on
collusion between both the vehicles resulting into a road
traffic accident. At this juncture, it cannot be ignored of the
fact that the bus was a heavy vehicle with wide chasis and
body, whereas, the motorcycle is a very slim two-wheeler
vehicle. Therefore, there appears to be no necessity for the
motorcycle to go to its right side on the road.
Added to the above, the Motor Vehicle Inspector's
report given on inspection of both the vehicles also go to
show that the right side bumper and headlight of the bus was
damaged, whereas, the motorcycle got damaged on its front
side in its entirety. This also go to show that the bus had not
come to its extreme right and motorcycle did not touch its
centre of the front body, on the other hand, the motorcycle
had dashed to the right side of the bus. Thus, there is
contributory negligence on the part of rider of the
motorcycle, which in the facts and circumstances of the case,
can be fixed at 20%. The remaining 80% negligence should
be on the part of driver of the offending vehicle. However,
this aspect the Tribunal has not appreciated in the light of the
evidence placed before it, otherwise, it would have answered
issue No.1 partly in affirmative, fixing the contributory
negligence on the part of rider of the motorcycle also at least
to an extent of 20%. Thus, there is contributory negligence
on the part of rider of the motorcycle at 20%.
11. The next point would be on the quantification of the
compensation. The appellant-Corporation has also taken a
contention that the quantification of the compensation is on
the higher side.
The claimant No.1 as PW-1 has deposed in her evidence
that her deceased husband was working as a Carpenter and
was earning a sum of `25,000/- and that the entire family
was depending upon his income. Except her oral statement,
she has not produced any other evidence, including any
documents to establish the alleged income of her deceased
husband. In that circumstances, it is the notional income
that is required to be taken. The Tribunal has taken the
notional income of the deceased at `8,000/- per month.
Admittedly, the incident has occurred in the year 2016. the
notional income of a person for the relevant year 2016 is
being taken at `9,500/- per month by large majority of Motor
Accident Claims Tribunals in the State uniformly. As such,
the notional income taken at `8,000/- per month by the
Tribunal requires a revisit.
The age of the deceased is 45 years as could be seen
from Exs.P-6 and P-7 and the same is not in dispute. As
such, the multiplier applicable to his age would be `14'. The
seven claimants, including the parents of the deceased, were
stated to be the depending upon the income of the deceased.
However, among them, claimant No.6 - father of the
deceased, was reported to be dead during the pendency of
claim petition before the Tribunal, as such, his claim petition
has stood abated. Thus, considering the total number of
dependants, the Tribunal has rightly deducted one-fifth of
income of the deceased towards his personal expenses.
Thus, the net contribution of the deceased towards the family
would be `9,500/- - `1,900/- = `7,600/-.
As per the judgment of the Hon'ble Apex Court in the
case of National Insurance Company Limited Vs. Pranay
Sethi and Others reported in (2017) 16 SCC 680, since the
deceased was self-employed person, 25% of his income is
required to be added towards loss of future prospects. Thus,
after adding the said future prospects at 25%, the
contribution of the deceased towards the family would to
`7,600/-+`1,900=`9,500/- per month. If it is multiplied by
the multiplier '14', the same comes to a sum `9,500/-x12
x14= `15,96,000/-. Thus, the compensation towards `loss
of dependency' would work out to a sum of `15,96,000/-,
whereas the Tribunal has awarded a sum of `15,05,280/-
towards the said head. Thus, under the head of `loss of
dependency', the claimants are entitled for enhancement of a
sum of `90,720/-.
12. Towards loss of consortium to wife and loss of
estate and funeral expenses i.e., towards conventional heads,
a sum of `70,000/- as compensation is deserving. Since the
claimant Nos.2, 3, 4 and 5 have lost their father and claimant
No.7 has lost her son, towards filial and parental consortium,
at `40,000/- each, the compensation is awarded, the same in
total comes to `40,000/-x5=`2 lakhs.
13. Thus, the claimants are entitled to a total
compensation as shown in the table below :
Sl.
Particulars Amount in `
No.
1 Loss of dependency 15,96,000/-
2 Loss of consortium, loss of estate 70,000/-
and funeral expenses
3 Towards filial and parental 2,00,000/-
consortium
Total 18,66,000/-
14. In view of the observations made above that the
deceased also has contributed negligence towards occurrence
of the accident, which was assessed at 20%, the total
entitlement of the claimants towards compensation would be
`18,66,000/- - `3,73,200/- = `14,92,800/-. Out of this
amount, as observed by the Tribunal, the respondent-
Corporation has already paid a sum of `15,000/- as an
ex gratia amount on the date of the accident, which has been
acknowledged by the claimants. As such, after deducting the
said amount, the total liability of the respondent-Corporation
in the Tribunal, who is the appellant in this appeal, would be
`14,92,800/- - `15,000/- = `14,77,800/-. Since the Tribunal
has awarded a sum of `16,55,300/-, which is in excess of a
sum of `16,55,300/- - `14,77,800/- = `1,77,500/-. It is only
in limiting the compensation to a sum of `14,77,800/-, the
interference by this Court in the impugned judgment and
award is warranted. As such, the appeal deserves to be
allowed in-part.
15. Accordingly, I proceed to pass the following:-
ORDER
[i] The Appeal filed by the Corporation
stands allowed in part;
[ii] The impugned judgment and award
passed by the learned I Addl.Senior Civil Judge
and Addl.Motor Accident Claims Tribunal-VII,
Shivamogga, dated 02.12.2019, in
M.V.C.No.634/2017, is hereby modified to the
extent that the compensation awarded at
`16,55,300/- is reduced to a sum of `14,77,800/-
(Rupees Fourteen Lakhs Seventyseven Thousand
Eight Hundred only).
[iii] The rest of the order of the Tribunal with
respect to fixing the liability upon the appellant-
Corporation to deposit the awarded amount,
awarding the interest, its rate, terms regarding
release of the amount awarded shall remain
unaltered.
Draw the award accordingly.
Registry to transmit a copy of this judgment to the
concerned Tribunal along with its records, without delay.
Sd/-
JUDGE
bk/
