Karnataka High Court
The Divisional Controller Nekrtc vs Amruta W/O Shivanagouda Manahalli, And ... on 22 November, 2023
Author: R.Devdas
Bench: R.Devdas
-1-
NC: 2023:KHC-K:8755-DB
MFA No. 202024 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 202024 OF 2022 (MV-D)
BETWEEN:
1. THE DIVISIONAL CONTROLLER,
NEKRTC, RAICHUR DIVISION,
RAICHUR.
NOW REPRESENTED BY CHIEF LAW OFFICER,
NEKRTC, NOW KKRTC, KALABURAGI.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed by
RAMESH 1. AMRUTA W/O SHIVANAGOUDA MANAHALLI,
MATHAPATI
Location: High
AGE: 28 YEARS,
Court of OCC: HOUSEHOLD
Karnataka
2. SANGAMESH
S/O SHIVANAGOUDA MANAHALLI,
AGE: 4 1/2 YEARS, MINOR,
REPRESENTED BY HIS NEXT FRIEND /
NATURAL MOTHER -RESP. NO. 1 HEREIN
C/O: GANGAPPAGOUDA GANGANAGOUDAR,
HOSUR ONI, VIJAYAPURA ROAD,
NEAR APMC, NALATWAD, TQ: MUDDEBIHAL,
DIST: VIJAYAPURA-586101.
-2-
NC: 2023:KHC-K:8755-DB
MFA No. 202024 of 2022
3. SUGALABAI
W/O BHIMANAGOUDA MAHAHALLI,
AGE: 58 YEARS, OCC: HOUSEHOLD
4. BHIMANAGOUDA
S/O GURULINGAPPA MANAHALLI,
AGE: 61 YEARS, OCC: AGRICULTURE
BOTH ARE R/O WADAWADAGI,
TQ: B. BAGEWADI,
NOW RESIDING AT KARNATAKA COLONY,
STATION ROAD, VIJAYAPURA-586101.
5. S.MAHABOOB BASHA S/O S. KHAJASAB,
AGE: 43 YEARS, OCC: BUSINESS,
R/O H. NO.34, WARD NO.26,
YASEEN SAB STREET,
COWL BAZAR, BALLARY-583101.
6. THE BRANCH MANAGER,
NATIONAL INS. CO., LTD.,
BEHIND S. S. TEMPLE,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADV FOR R1 & R2;
SRI. B.K. HIREMATH, ADV FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR THE RECORDS AND ALLOW THE ABOVE
APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 17.05.2022 IN MVC NO. 1356/2019 PASSED BY
THE II ADDL. SENIOR CIVIL JUDGE AND MACT VII AT
VIJAYAPURA, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
C.M.JOSHI, J., DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-K:8755-DB
MFA No. 202024 of 2022
JUDGMENT
Though the matter is slated for orders, with the
consent of learned counsel on both the sides, it is taken up
for final disposal and heard the arguments by both the
sides.
Being aggrieved by the judgment and award passed
by the learned II Additional Senior Civil Judge and MACT
VII at Vijayapura, dated 17.05.2022 in MVC No.
1356/2019, respondent No.3 -NEKRTC, Raichur Division, is
before this Court.
2. The brief facts of the case are:
The petitioners, who are respondent Nos. 1 and 2
herein and Parents of the deceased Shivanagouda s/o
Bhimanagouda Manahalli filed a claim petition under
Section 166 of MV Act before the Tribunal seeking
compensation contending that on 22-6-2019 their son
Shivanagouda was on duty as driver in KSRTC bus bearing
No.KA.36-F-1405 and proceeding towards Raichur from
NC: 2023:KHC-K:8755-DB
Bengaluru; and on 23-6-2019 at about 5.10 a.m. when the
bus was proceeding near Kannari cross, near Sindhanur on
Sindhanur-Shiraguppa Main road, the second driver was
driving the said bus at high speed; and the lorry bearing
No.KA.20.D.3936 loaded with iron rods, angles etc., was
stationed on the road without any sign, signal or marks
etc. The bus driver dashed the said bus to the rear of the
said lorry and caused the accident. Due to the impact both
bus drivers died at the spot. It is alleged that the accident
occurred due to the rash and negligent driving by drivers of
KSRTC bus as well as the driver of the lorry. In this regard
a criminal case is registered by Sindhanur Rural police in
Crime No.98/2019.
3. It was further contended that petitioners being the
parents of the deceased Shivanagouda and respondent
Nos. 4 and 5 who are the wife and 1 ½ years old son of the
deceased claimed compensation from respondent Nos. 1 to
3. It was contended that deceased was aged 35 years
serving in NEKRTC Raichur Division and getting monthly
NC: 2023:KHC-K:8755-DB
salary of Rs.21,272/- apart from incentives and
contributing to the family.
4. On issuance of notice, respondent Nos. 1 to 5 have
appeared through their respective counsels before the
Tribunal and filed their written statement.
5. Respondent No.1, the owner of the lorry filed the
written statement contending that there was no such rash
and negligent act that could be attributed to his driver and
he contended that his vehicle was insured with respondent
No.2 and policy was in force as on the date of accident and
therefore, liability may be fastened upon respondent No.2.
6. Respondent No.2- insurer of the said lorry
contended that the negligence was on the part of the driver
of NEKRTC bus, who did not notice the parked lorry and
therefore, there was no negligence on the part of the lorry
driver. It was contended that the lorry was parked on the
extreme left side of the road with abundant precaution. It
is contended that there were violation of terms and
NC: 2023:KHC-K:8755-DB
conditions of the policy and therefore, petition may be
dismissed.
7. Respondent No.3-NEKRTC filed the written
statement contending that the accident took place due to
negligent act of lorry driver who has parked the lorry
loaded with the iron rods by causing obstruction for free
movement of the vehicle without any signals, parking
lights etc., and on the other hand, the bus driver was
driving the bus cautiously and therefore, negligence cannot
be attributed to the bus driver.
8. Respondent Nos. 4 and 5, who are wife and child of
deceased Shivanagouda, filed the written statement
supporting the claim petition and contended that they are
also entitled for the compensation from the tortfeasers and
made counter claim for awarding compensation of
Rs.60,59,952/-.
9. On the basis of the above pleadings, the Tribunal
has framed appropriate issues. Petitioner No.1 was
NC: 2023:KHC-K:8755-DB
examined as PW1 and Exs.P1 to P7 produced and marked
in evidence. On behalf of respondent Nos.4 and 5,
respondent No.4 examined as RW1 and Exs.R1 to R5 were
marked. On behalf of respondent No.3 Depot Manager was
examined as RW2 and Exs.R6 to R8 were marked in
evidence. Ex.R9 is marked through RW2 for respondent
No.2. Respondent No.1 examined himself as RW3.
10. The Tribunal after hearing both the sides, held
that the driver of the lorry as well as the driver of KSRTC
bus contributed negligence at 50% each and held that the
respondent Nos.2 and 3 are liable to pay the compensation
of Rs.47,63,248/- under different heads.
11. Being aggrieved by the said judgment and award,
respondent No.3-The Divisional Controller, NEKRTC,
Raichur Division has approached this Court in appeal.
12. The appellant-NEKRTC contended that the
impugned judgment and award is contrary to the
provisions of law and the Tribunal erred in holding that
NC: 2023:KHC-K:8755-DB
there was negligence on the part of the bus driver also. It
is contended that the lorry was parked without any
indication of it being parked or had broken down and
therefore, the entire negligence should have been fastened
upon the driver of the lorry. It also contended that the
compensation awarded by the Tribunal is also on higher
side and it has to be modified.
13. On issuance of notice, respondent Nos. 1 and
2(respondent No. 4 and 5 before Tribunal) have appeared
through their counsel. Respondent No.4- father of
deceased, is dead and respondent Nos. 1 to 3 were
brought on record as his LRs. Respondent No.5- owner of
lorry was served and remained unrepresented.
Respondent No. 6- insurer of lorry has appeared through
its counsel.
14. The Tribunal records have been secured.
15. The learned counsel appearing for the appellant-
Smt. Preeti Patil Melkundi, contended that the appellant did
NC: 2023:KHC-K:8755-DB
not dispute the liability since the deceased was not driving
the bus at the time of the accident. The second driver in
the said bus was driving the bus. It is submitted that the
apportionment of the negligence by the Tribunal is not
justifiable since the lorry loaded with rods and angles etc.,
was parked at the center of the road and therefore, the
Tribunal has erred in fastening 50% liability on the
appellant.
16. Per contra, learned counsel appearing for
respondent No.2 (respondent No. 6 herein)- National
Insurance Company Limited, the insurer of the lorry
contended that the lorry was parked on the left side of the
road and therefore, no negligence could have been
fastened on the lorry driver. However, he has defended
the judgment of the Tribunal holding that there was
negligence of 50%.
17. A careful perusal of the impugned judgment as
well as the evidence on record discloses that the Depot
Manager of the appellant herein had visited the spot within
- 10 -
NC: 2023:KHC-K:8755-DB
35 minutes of the accident. The investigation report was
also prepared and the same has been produced at Ex.R7.
This report coupled with the police papers i.e., copy of the
FIR, complaint, spot mahazar and the chargesheet at
Ex.P1,2, P3 and P7 show that the spot of the accident is
highway and the width of the road is sufficient enough for
two vehicles to pass at a time. The cross-examination of
RW2 Depot Manager of the appellant herein shows that in
Ex.R9 photographs, admittedly, the lorry was on the left
side and he has stated that due to impact of the bus, lorry
was pushed about 25 feet and was facing towards the left
side of the road. This say of RW2 appears to be correct.
The police records and the panchanama also show this
aspect. It is evident that before the accident, the lorry
was stationed on the centre of left lane of the road. It is
obvious that a vehicle, which was coming from behind, did
not anticipate that the lorry was parked unless there are
indicators. It has come in the investigation report that the
lorry had been parked on the road but there were no
indicators put on or blinkers were working. Thus, the
- 11 -
NC: 2023:KHC-K:8755-DB
evidence available on record clearly show that there was
negligence on the part of the lorry driver as well as the bus
driver.
18. It is pertinent to note that the Tribunal has come
to the conclusion that the negligence by each of the
tortfeaser is 50% each. The reason as to why it has
arrived at 50% each is not forthcoming in the judgment of
the Tribunal.
19. On a careful analysis of the circumstances which
emanate from the investigation report of RW2 and the
chargesheet produced by the petitioners at Ex.P9, there
was greater degree of negligence on the part of the lorry
driver. Obviously, the lorry was loaded with iron rods and
therefore, it is evident that the lorry driver should have put
on the indicators to show that it was parked at the center
of the road. The reason for such parking is not forthcoming
in the evidence. Under these circumstances, we are of the
considered view that the negligence that could be
- 12 -
NC: 2023:KHC-K:8755-DB
attributed to the lorry driver is 65% and that of the bus
driver is 35%.
20. The Tribunal has considered the salary of the
deceased. It has added 50% towards future prospects and
had arrived at the compensation of Rs.47,63,248/-. It has
awarded the compensation under different heads as below:
Loss of income due to
1. Rs. 45,73,248-00
dependency
Towards loss of spousal &
2. Rs. 1,60,000-00
parental consortium.
3. Loss of Estate Rs. 15,000-00
Towards Transportation and
4. Rs. 15,000-00
Funeral Expenses
Total: Rs. 47,63,248-00
21. We do not find any reason to interfere in the
compensation awarded by the Tribunal. Nothing is pointed
out to show that the calculation of the compensation
amount is erroneous by the Tribunal.
22. The learned counsel appearing for petitioners/
respondent Nos.1 and 2 herein has filed a memo stating
that petitioner No.2/respondent No.4 is dead and the legal
- 13 -
NC: 2023:KHC-K:8755-DB
heirs are already on record. Therefore, it is submitted that
the apportionment be reworked out.
23. For aforesaid reasons, the appeal deserves to be
allowed in part. Hence, the following:
ORDER
(i) The appeal filed by the appellant-
NEKRTC is allowed in part.
(ii) The liability of the appellant
herein/respondent No.3 before the Tribunal, is
held to be 35% and that of the respondent No.6
herein and respondent No. 2 before Tribunal,-
National Insurance Company Limited is held to
be 65%.
(iii) The appellant-NEKRTC and the
respondent No.2-National Insurance Company
Limited shall deposit the compensation within
six weeks from today along with interest at 6%
p.a. from the date of petition till its realization.
- 14 -
NC: 2023:KHC-K:8755-DB
(iv) The petitioner No.1 is entitled for 20%
and 4 who are the wife and son of the deceased
are entitled for 50% and 30% of the
compensation amount respectively.
(v) The extent of fixed deposit and its
release etc., as ordered by the Tribunal remain
unaltered.
(iv) The amount in deposit shall be
transmitted to the concerned Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
tsn*
