Karnataka High Court
The Managing Director Nekrtc vs Satappa @ Sathlingappa S/O ... on 22 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 200101 of 2022
C/W MFA No. 202218 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.200101 OF 2022 (MV-D)
C/W
MISCL. FIRST APPEAL NO.202218 OF 2023 (MV-D)
IN MFA NO.200101 OF 2022:
BETWEEN:
THE MANAGING DIRECTOR NEKRTC,
KALABURAGI,
NOW REPRESENTED THROUGH BY ITS
CHIEF LAW OFFICER KKRTC,
CENTRAL OFFICE, SARIGE SADAHANA,
MAIN ROAD, KALABURAGI-585 101.
Digitally signed ...APPELLANT
by LUCYGRACE
Location: HIGH (BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
COURT OF
KARNATAKA AND:
1. SATAPPA @ SATHLINGAPPA
S/O CHANNABASAPPA,
AGE: 45 YEARS, OCC. NIL,
2. DANAMMA
W/O SATAPPA @ SATHLINGAPPA,
AGE: 43 YEARS,
OCC: HOUSE HOLD WORK,
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MFA No. 200101 of 2022
C/W MFA No. 202218 of 2023
ALL ARE R/O SHIVANGI,
TQ. AND DIST. VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT DATED
16.07.2021 AND AWARD DATED 23.07.2021 IN MVC
NO.400/2018 IN THE COURT OF PRINCIPAL SENIOR CIVIL
JUDGE AND MACT-V, VIJAYAPUR.
IN MFA NO.202218 OF 2023:
BETWEEN:
1. SATAPPA @ SATHLINGAPPA
S/O CHANNABASAPPA,
AGE: 47 YEARS, OCC: NIL,
2. DANAMMA
W/O SATAPPA @ SATHLINGAPPA,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O SHIVANAGI,
TQ. & DIST. VIJAYAPURA.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
THE MANAGING DIRECTOR, NEKRTC,
KALABURAGI-585 102.
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
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MFA No. 200101 of 2022
C/W MFA No. 202218 of 2023
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 16.07.2021
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT-V,
VIJAYAPUR IN MVC NO.400/2018 AND CONSEQUENTLY BE
PLEASED TO ENHANCE THE COMPENSATION AMOUNT
RS.15,00,000/- WITH INTEREST AT 12 PERCENT PER ANNUM
FROM THE DATE OF PETITION TILL ACTUAL REALIZATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.200101/2022 is filed by the NEKRTC
aggrieved by the judgment and award dated 16.07.2021
passed in MVC No.400/2018 on the file of Principal Senior
Civil Judge and MACT-V at Vijayapura (for short 'the
Tribunal'), by which, the Tribunal while partly allowing the
claim petition has awarded a total compensation of
Rs.4,85,000/- with interest at 6% p.a. from the date of
petition till realisation and directed the NEKRTC to pay the
same. Whereas, MFA No.202218/2023 is filed by the
claimants in the said MVC, seeking enhancement of
compensation.
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2. Facts in brief are that, on 16.08.2017 at about
6.00 p.m., near Sonna village on Afzalpur-Vijayapura
road, while the deceased was proceeding on the extreme
side of the road, a bus bearing Reg. No.KA-32/F-2268
driven by its driver in a rash and negligent manner having
lost control dashed against the deceased resulting in the
accident, due to which deceased Sunil sustained grievous
injuries and succumbed to the same. Thereupon, a claim
petition was filed under Section 166 of the Motor Vehicles
Act, seeking compensation.
3. On service of summons, the respondent filed
written statement denying the petition averments, age,
occupation and income of the deceased and also denied
that the death had occurred on account of the accident. It
was contended that the accident had taken place on
account of rash and negligent riding of the motorcycle
bearing Reg. No.KA-32/EQ-0401 and that there was no
negligence on the part of the driver of the NEKRTC bus. It
was also contended that the deceased was minor at the
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time of accident and that, a sum of Rs.15,000/- was paid
to the claimants immediately after the accident and the
same requires to be deducted out of the compensation
amount.
4. Based on the pleadings, the Tribunal framed
issues and recorded the evidence. Claimant No.1
examined herself as PW.1 and exhibited 9 documents as
Exs.P1 to P9. On behalf of the respondent, the driver of
the NEKRTC bus was examined as RW.1 and exhibited
three documents as Exs.R1 to R3.
5. On appreciation of the pleadings and evidence,
the Tribunal held that the death of the deceased was due
to the accident that occurred on account of rash and
negligent driving of the NEKRTC bus by its driver and
consequently held that the claimants are entitled for
compensation as noted above. Being aggrieved by the
same, NEKRTC is before this Court, questioning the
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liability and the claimants are before this Court, seeking
enhancement of compensation.
6. Sri Sharanabasappa M. Patil, learned counsel
for the appellant - Corporation in MFA No.200101/2022
reiterating the grounds urged in the memorandum of
appeal, submitted that the deceased was riding the bike in
without having any licence and he was aged about 12
years old. That, the deceased had contributed to the
accident and the same had not been considered by the
Tribunal.
7. Per contra, Sri Sanganagouda V. Biradar,
learned counsel for the appellants in MFA No.202218/2023
- claimants submits that a completely new case is brought
up by the NEKRTC before this Court, introducing the
theory of deceased riding the motorcycle. He submits that
the specific case of the claimants was that the accident
occurred when the deceased was proceeding on the
extreme side of the road and there is no involvement of
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the motorcycle in the accident whatsoever. Thus, he
submits that apart from frivolous, the grounds urged in
the appeal are baseless and contrary to the material on
record.
8. As regards enhancement of compensation is
concerned, learned counsel submits that the Tribunal has
taken into consideration the judgment and ruling of the
Apex Court in the case of Kishan Gopal and Another Vs.
Lala and Others reported in (2014) 1 SCC 244 and
granted a compensation of Rs.4,85,000/-, which requires
to be re-determined in the light of the judgment of
Co-ordinate Bench of this Court passed in MFA
No.201352/2022 in the case of Indubai W/o Suresh
Lamani @ Chavan and others Vs. Prakash S/o Vijay
Chavan and others decided on 24.05.2023.
9. Heard the learned counsel for the parties and
perused the records.
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10. It is the case of the claimants that even as
evidenced from the contents in complaint dated
16.08.2017, charge sheet and the statement in the claim
petition and in the evidence, the deceased had gone on a
motorcycle along with one Dastagir and thereafter was
returning by walk thereafter by the side of the road. At
that time, the driver of the offending bus having lost
control while driving the same in a rash and negligent
manner had hit the deceased. There is no whisper either
in the complaint, charge sheet or the claim petition
regarding involvement of the motorcycle in the accident.
On a query by this Court regarding basis on which the
present ground is raised, learned counsel for the NEKRTC
submits that it was on the basis of statement given by the
driver of the NEKRTC bus before the Superintendent of
Police on 29.08.2017. However, he is unable to elaborate
the said submission as to the basis on which the said
information is given or if any investigation had been
conducted on the basis of said statement. It is also
necessary to note at this juncture the MVI report at Ex.P4
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which was conducted on 19.08.2017, in that, the offending
bus has been inspected and there is no reference to the
alleged involvement of the motorcycle. Thus, from the
material placed on record before the Tribunal and before
this Court, it is clear that the accident has occurred while
the deceased was walking by the side of the road and
there appears to be no involvement of any nature
whatsoever of the motorcycle. The grounds urged before
this Court in the appeal filed by the NEKRTC are
admittedly for the first time and no such grounds have
been urged before the Tribunal. Though learned counsel
for the NEKRTC at this juncture refers to paragraph 12 of
the impugned judgment trying to make out a case
justifying the ground urged in the appeal specifically with
respect to minor riding the motorcycle, he is unable to
point out any such plea having been taken before the
Tribunal.
11. It may also be necessary to note that plea of
respondent-Corporation paying Rs.15,000/- to the
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claimants towards immediate compensation has been
taken note of by the Tribunal at para 20 of the impugned
judgment. This also indicate that the respondent had paid
the said sum of Rs.15,000/- on the very date and time of
the accident, further creating suspicion with regard to the
subsequent ground being urged in this case.
12. As already noted above, the statement of
objection filed by the respondent - NEKRTC to the claim
petition appears to be reiteration of the statement that
was given on 29.08.2017 by the driver of the NEKRTC bus.
Needless to state that the said statement and further
reiteration of the same in the statement of objection is an
after thought to cover up negligence on the part of the
driver of the offending bus. That being the case, there is
no ground warranting interference with the judgment and
award passed by the Tribunal. Accordingly, MFA
No.200101/2022 filed by the NEKRTC is dismissed.
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13. As regards the claim for enhancement of
compensation is concerned, admittedly the deceased was
aged about 12 years at the time of the accident. The
Tribunal has relied upon the judgment of Honble Apex
Court in the case of Kishan Gopal (supra) and
accordingly awarded compensation of Rs.4,50,000/- and
Rs.50,000/- under the conventional heads i.e., towards
loss of love and affection, funeral expenses and last rites
and out of the same, it has deducted Rs.15,000/- which
has already been paid by the respondent as interim
compensation.
14. The Co-ordinate Bench of this Court in an
identical situation involving the death of a minor, who was
aged 9 years at the time of accident, referring to the
principles laid down by the Apex Court in the case of
Kishan Gopal (supra) has also taken into consideration
the factor of inflation and added 5% rate of inflation per
annum and accordingly awarded compensation to the
victim. Applying the said principle, this Court also
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considers necessary to add 5% rate of inflation even to the
notional income of Rs.30,000/- per annum determined as
income of the minor in this case. Accordingly, the notional
income of the minor in the instant case is assessed at
Rs.35,000/- per annum. Considering the age of the minor,
multiplier of 18 is applied. Thus, calculated as above, the
claimants are held entitled for a sum of Rs.6,30,000/-
(Rs.35,000 x 18).
15. In view of the law laid down by the Hon'ble
Apex Court in case of Magma General Insurance
Company Limited vs. Nanu Ram Alias Chuhru Ram
and others reported in (2018) 18 SCC 130 which is
subsequently clarified in United India Insurance Co.
Ltd., v. Satinder Kaur alias Satwinder Kaur and
others reported in AIR 2020 SC 3076, claimants being
the parents of the deceased are entitled for Rs.40,000/-
each aggregating Rs.80,000/- towards loss of filial
consortium.
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16. Further, the claimants are entitled for a sum of
Rs.15,000/- towards funeral expenses.
17. Thus, the claimants are held entitled for a total
compensation of Rs.7,25,000/- instead of Rs.4,85,000/-
awarded by the Tribunal.
18. For the foregoing reasons, the following:
ORDER
a) MFA No.200101/2022 filed by the NEKRTC is
dismissed.
b) MFA No.202218/2023 filed by the claimants is
partly allowed.
c) The appellants in MFA No.202218/2023 -
claimants are held entitled for a total
compensation of Rs.7,25,000/- instead of
Rs.4,85,000/- awarded by the Tribunal with
interest at 6% per annum from the date of
claim petition till realization. However, the
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appellants are not entitled for interest for the
delayed period of 252 days in filing the appeal.
d) The appellant - NEKRTC in MFA
No.200101/2022 shall deposit the aforesaid
compensation amount within a period six weeks
from the date of receipt of certified copy of this
judgment.
e) The amount deposited, if any, by the NERKTC is
ordered to be transmitted to the Tribunal.
f) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
LG
