Karnataka High Court

Jainabai And Ors vs The Divisional Controller And Ors on 27 November, 2023

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                                               -1-
                                                       NC: 2023:KHC-K:8844
                                                        MFA No. 200913 of 2020
                                                    C/W MFA No. 200914 of 2020
                                                        MFA No. 200932 of 2021


                             IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                        DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                            BEFORE
                           THE HON'BLE MR. JUSTICE M.G.S.KAMAL

                    MISCL. FIRST APPEAL NO.200913 OF 2020 (MV-D)
                                              C/W
                    MISCL. FIRST APPEAL NO.200914 OF 2020 (MV-D),
                    MISCL. FIRST APPEAL NO.200932 OF 2021 (MV-D)

                   IN MFA NO.200913 OF 2020:

                   BETWEEN:

                   THE DIVISIONAL CONTROLLER,
                   NWKRTC, KALABURAGI.
                   (NOW REPRESENTED BY
                   CHIEF LAW OFFICER, NEKRTC,
                   KALABURAGI)
Digitally signed
by LUCYGRACE                                                       ...APPELLANT
Location: HIGH
COURT OF           (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
KARNATAKA
                   AND:

                   1.    JAINABAI
                         W/O MOHAMMED HUSSAIN,
                         AGE: 59 YEARS, OCC: NIL,

                   2.    DAVALMA @ DAVALBI
                         W/O ALLABAKSH,
                         AGE: 29 YEARS, OCC: HOUSEHOLD,
                            -2-
                                 NC: 2023:KHC-K:8844
                                  MFA No. 200913 of 2020
                              C/W MFA No. 200914 of 2020
                                  MFA No. 200932 of 2021


3.   RASULBI D/O ALLABAKSH,
     AGE: 11 YEARS,

4.   SHAISTA BEGUM D/O ALLABAKSH,
     AGE: 09 YEARS,

     RESPONDENT NO.3 AND 4 HEREIN ARE MINORS,
     U/G OF THEIR NATURAL MOTHER RESP. NO.2
     HEREIN,

     ALL R/O ASAR GALLI,
     VIJAYAPUR-586 101.

5.   MOHAMMAD ISUPH
     S/O HUSENSAB,
     AGE: MAJOR, OCC: BUSINESS,
     R/O NEAR VALMIKI SCHOOL,
     HUNASAGI ROAD, KEMBHAVI-585 216,
     TQ. SHORAPUR, DIST. YADGIR.

6.   THE MANAGER LEGAL / CLAIM,
     TATA AIG GEN. INS. CO. LTD.,
     PENISULA CORPORATE PARK,
     NICHOLAS PIRAMAL TOWER, 9TH FLOOR,
     GANAPARTRAO KADAM MARG,
     LOWE PATEL, MUMBAI-400 013.

                                          ...RESPONDENTS

(SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR R1 & R2;
 SRI. SUBHASH MALLAPUR, ADVOCATE FOR R6;
 R3 & R4 ARE MINORS REPRESENTED BY R2;
 R5 - SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 04.03.2020 IN MVC NO.111/2016 PASSED BY THE
III ADDITIONAL SENIOR CIVIL JUDGE AND MACT XII AT
VIJAYAPURA.
                           -3-
                                NC: 2023:KHC-K:8844
                                 MFA No. 200913 of 2020
                             C/W MFA No. 200914 of 2020
                                 MFA No. 200932 of 2021


IN MFA NO.200914 OF 2020:

BETWEEN:

THE DIVISIONAL CONTROLLER,
NWKRTC, KALABURAGI,
(NOW REPRESENTED BY
CHIEF LAW OFFICER,
NEKRTC, KALABURAGI).

                                             ...APPELLANT

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

AND:

MOHAMMED YOUSUF
S/O HUSSAIN SAB,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: ASAR GALLI,
VIJAYPUR-586 101.


                                            ...RESPONDENT

(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)

       THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE APPEAL BY
SETTING ASIDE THE IMPUGNED COMMON JUDGMENT AND
AWARD DATED 04.03.2020 IN MVC NO.112/2016 PASSED BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND MACT XII AT
VIJAYAPURA.
                              -4-
                                    NC: 2023:KHC-K:8844
                                     MFA No. 200913 of 2020
                                 C/W MFA No. 200914 of 2020
                                     MFA No. 200932 of 2021


IN MFA NO.200932 OF 2021:

BETWEEN:

1.   JAINABAI
     W/O MOHAMMED HUSSAIN,
     AGE: 60 YEARS, OCC: NILL,

2.   DAVALMA @ DAVALBI
     W/O ALLABAKSH,
     AGE: 30 YEARS, OCC: HOUSEHOLD,

3.   RASULBI D/O ALLABAKSH,
     AGE: 12 YEARS,
     M/G BY APPELLANT NO.2

4.   SHAISTA BEGUM
     D/O ALLABAKSH,
     AGE: 10 YEARS,
     M/G BY APPELLANT NO.2

     ALL ARE R/O ASAR GALLI,
     VIJAYAPUR-586 101.

                                               ...APPELLANTS

(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)

AND:

1.   THE DIVISIONAL CONTROLLER,
     NWKRTC KALABURAGI.

2.   MOHAMMAD ISUPH
     S/O HUSENSAB,
     AGE: MAJOR, OCC: BUSINESS,
     R/O NEAR VALMIKI SCHOOL,
     HUNASAGI ROAD,
     KEMBHAVI- 585 216,
     TQ. SHORAPUR, DIST. YADAGIR.
                             -5-
                                  NC: 2023:KHC-K:8844
                                  MFA No. 200913 of 2020
                              C/W MFA No. 200914 of 2020
                                  MFA No. 200932 of 2021


3.    THE MANAGER LEGAL/CLAIM,
      TATA AIG GENERAL INSURANCE CO. LTD.,
      PENISULA CORPORATE PARK,
      NICHOLAS PIRAMAL TOWER, 9TH FLOOR,
      GANAPATRAO KADAM MARG,
      LOWE PAREL, MUMBAI - 400 013.

                                             ...RESPONDENTS

(SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R1;
 SRI. SUBHASH MALLAPUR, ADVOCATE FOR R3;
 V/O DATED 27.11.2023 STEPS TO R2 DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 04.03.2020 PASSED BY THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MACT XII AT VIJAYAPUR IN MVC
NO.111/2016 AND BE PLEASED TO ALLOW THE CLAIM
PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE
APPELLANTS HEREIN.

     THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

MFA No.200913/2020 and MFA No.200914/2020 are

filed by the NWKRTC aggrieved by the common judgment

and awards dated 04.03.2020 passed in MVC

Nos.111/2016 and 112/2016 on the file of III Additional

Senior Civil Judge and MACT at Vijayapura (for short

Tribunal), by which, the Tribunal while partly allowing the

claim petitions has granted compensation of Rs.9,04,800/-

NC: 2023:KHC-K:8844

to the claimants in MVC No.111/2016 and Rs.40,000/- to

the claimant in MVC No.112/2016 to the extent fixing the

liability at 80% on the appellant - Corporation. While, MFA

No.200932/2021 is filed by the claimants in MVC

No.111/2016, seeking enhancement of compensation.

2. Brief facts of the case are that, on 12.04.2015,

deceased Allabaksha S/o Mohammad Hussain was driving

Tata Ace vehicle bearing Reg.No.KA-33/A-2706

proceedings towards Bhairmaddi from Hunasagi side and

when he came near Devar Gonal on Kembhavi-Solapur

road, the KSRTC bus bearing No.KA-32/F-1049 which

came from the opposite direction driven by its driver in a

rash and negligent manner dashed the said Tata Ace

vehicle resulting in accident causing severe injuries to the

deceased and he succumbing to the injuries on the spot

and the said Tata Ace vehicle sustaining damages.

Thereupon, claim petitions were filed in MVC

Nos.111/2016 and 112/2016 respectively claiming

compensation of Rs.50,00,000/- on account of death of

NC: 2023:KHC-K:8844

the deceased and Rs.2,00,000/- towards damages to the

motor vehicle. It is contended that the deceased was 28

years old and working as a driver and also doing milk

business, thereby earning Rs.15,000/- per month and the

untimely death of the deceased caused both financial and

mental distress to the wife, mother and children. It is

contended that the accident had occurred on account of

rash and negligent driving of the NEKRTC bus and that the

Corporation was liable to pay the compensation on account

of death of the deceased as well as damages to the

vehicle.

3. In response to the summons, respondent No.1 -

Corporation in MVC No.111/2016 filed written statement

denying the petition averments and also denied the age,

occupation and income of the deceased. It is contended

that the police who registered the case against both the

drivers of Tata Ace as well as the NEKRTC bus have filed

the chare sheet. It is found that the driver of the Tata Ace

vehicle did not have valid driving licence at the time of

NC: 2023:KHC-K:8844

accident and that the accident had occurred on account of

negligence on the part of the driver of the Tata Ace

vehicle.

Respondent No.3 in MVC No.111/2016 - Insurance

Company, who had insured Tata Ace vehicle also filed

statement of objections denying the contents of the

petition. It is contended that the driver of the Tata Ace

vehicle did not possess a valid driving licence. There was

breach of terms of the policy. Hence, sought for dismissal

of the claim petition.

4. Based on the pleadings, the Tribunal framed

issues in both the cases and recorded the evidence. Three

witnesses examined on behalf of the claimants as PWs.1 to

3 and exhibited 10 documents as Exs.P1 to P10. Three

witnesses have been examined on behalf of the

respondent - Corporation as RWs.1 to 3 and exhibited 4

documents as Exs.R1 to R4.

NC: 2023:KHC-K:8844

5. The Tribunal, on appreciation of the evidence

has come to the conclusion that the accident had occurred

on account of negligence on the part of the driver of the

Corporation and however, held that the driver of the Tata

Ace vehicle has also contributed to the accident and thus,

attributed 80% negligence on the Corporation and 20%

negligence on the deceased. Taking income of the

deceased at Rs.7,000/- per month, the Tribunal has

awarded total compensation of Rs.11,31,000/- and has

directed the respondent-Corporation to pay 80% of the

same being Rs.9,04,800/- with interest at 6% p.a. and

awarded compensation of Rs.40,000/- towards damages

to the vehicle. Being aggrieved by the same, the

Corporation is in appeals in the aforesaid MFA

Nos.200913/2020 and 200914/2020 and the claimants in

MVC No.111/2016 are before this Court, seeking

enhancement of compensation.

6. Smt. Preeti Patil Melkundi, learned counsel

appearing for the appellant - Corporation in MFA

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NC: 2023:KHC-K:8844

Nos.200913/2020 and 200914/2020 referring to the

contents of the charge sheet and the evidence of the

witnesses, vehemently submits that the material on record

categorically indicate that it is a case of head on collision.

She also submits that in the investigation and in the

evidence it is established that the driver of the Tata Ace

vehicle did not possess valid driving lience. Thus, on the

basis of these material evidence she submits that the

Tribunal grossly erred in not apportioning the negligence

on the part of the driver of the NEKRTC bus at 80%, while

20% attributed on the part of the driver of the Tata Ace

vehicle i.e., deceased. She submits that in the fact

situation of the matter and in the light of the material

evidence, the Tribunal ought to have attributed negligence

in the equal ratio of 50% each on the part of drivers of

both the vehicles. Thus, she submits that the Tribunal has

not appreciated the evidence resulting in miscarriage of

justice.

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NC: 2023:KHC-K:8844

7. On the other hand, Sri Sanganabasava B. Patil,

learned counsel appearing for the appellants in MFA

No.200932/2021 - claimants submits that the claimants

have examined the eyewitness who was traveling in the

bus, whose credibility has not been disputed. He also

submits that even the witnesses who are examined on

behalf of the Corporation have not disputed the fact of

negligence on the part of the driver of the NEKRTC bus. He

points out that even as per the deposition of the driver of

NEKRTC bus, he had paid Rs.15,000/- on the spot. It only

indicates that there was negligence on his part. He

submits that no explanation is given for non-filing of the

complaint by the driver of the NEKRTC bus. Thus, he

submits that these are the facts indicating negligence on

the part of the driver of the NEKRTC bus. Hence, seeks for

dismissal of the appeals filed by the Corporation.

8. As regards enhancement of compensation, he

submits that the deceased was aged about 28 years and

was earning Rs.15,000/- per month from working as a

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driver and also from milk business. He submits that the

Tribunal has taken the income at Rs.7,000/- per month,

which is grossly inadequate and also the grant of

compensation on other heads is also on lower side.

Hence, seeks for enhancement of compensation.

9. Heard the learned counsel for the parties and

perused the records.

10. In the charge sheet produced at Ex.P6, the

Investigating Officer has stated that the accident had

occurred on account of rash and negligent driving of both

the drivers of NEKRTC as well as Tata Ace vehicle. There is

also mention of the driver of Tata Ace vehicle not

possessing the valid driving licence. It is for that reason,

the owner of the Tata Ace vehicle has been arraigned as

accused No.3. In the spot panchanama produced at Ex.P3,

the spot of accident is shown as middle of the road. It is

necessary to see the Motor Vehicle Inspection report

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NC: 2023:KHC-K:8844

produced at Ex.P7, wherein at the time of inspection, the

damages to the vehicles found are given as under:

"1. KA-32-F-1049 : a) Front bumper damaged.

b) Right side head light & indicator damaged.

c) Wind screen glass damaged. d) Right side front show damaged. e) Right side front wheel mudguard damaged. f) Right side rear view mirror damaged.

2. KA-33-A-2706: a) Front bumper damaged.

b) Right side head light & indicator damaged.

c) Right side front show damaged. d) Wind screen glass with frame damaged. e) Right side front wheel mudguard damaged. f) Right side front door with glass damaged. g) Cabin top damaged. h) Right side rear view mirror damaged."

11. Though in the charge sheet the driver of the

NEKRTC bus and the deceased - driver of Tata Ace vehicle

were also made as accused, there was no detail provided

as to who has contributed to the accident. The spot

inspection report and the sketch found at Ex.P3 also would

not give the detail as to who has contributed to the

accident. However, it becomes necessary to peruse the

contents of Ex.P7 which has been extracted hereinabove,

wherein right side of both the vehicles are found to have

been damaged. In other words, though the word 'head on

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collision' is used, the damages to the vehicles on

inspection found at Ex.P7 reveal that the right side of both

the vehicles have sustained damages and left side of the

vehicles do not seem to have suffered any damage.

Further, the claimants have examined PW.3, who is stated

to be the eyewitness and who was traveling in the bus

sitting on the seat besides the driver of the vehicle. In the

cross-examination, nothing has been elicited to discredit

the evidence of the said witness being an eyewitness. In

fact, a suggestion was made that since he was facing the

driver in the bus he was not able to see the accident

clearly. Though suggestion was made that he was not

traveling in the said bus, nothing further is brought on

record to discredit the said witness being an eyewitness.

As rightly taken note of by the Tribunal, the driver of the

offending bus seems to have paid Rs.15,000/- to the

owner of the Tata Ace on the spot on the date of the

accident. These facts and circumstances of the matter

would reveal that the accident might have occurred on

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account of rash and negligent driving of the bus. It is

settled law that the negligence can be attributed only on

the person, who had the last opportunity to avoid the

incident/accident. The Tribunal has however held that the

driver of the offending bus was responsible and has

attributed negligence to the extent of 80% on him and has

also attributed negligence of 20% on the driver of the tata

Ace vehicle i.e., deceased. In the facts and circumstances

of the matter, this Court do not see any convincing ground

urged/made out by the Corporation to interfere with the

said finding, more particularly, in view of the evidence in

the nature of motor vehicle inspection report and also the

evidence of eyewitness - PW.3. It may also be pertinent

to note that two witnesses examined on behalf of

respondent though claimed to have conducted their own

inspection have not filed any such report. In that view of

the matter, this Court do not see any ground convincing

enough to interfere with the finding given by the Tribunal

attributing negligence in the ratio of 80% on the driver of

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the offending bus and 20% on the deceased. Accordingly,

the appeals filed by the Corporation on the ground of

liability are liable to be dismissed.

12. Adverting to the appeal filed by the claimants

seeking enhancement of compensation, it is seen that the

deceased was aged about 28 years and though it is

claimed that he was earning Rs.15,000/- per month, no

documentary evidence is produced in that regard. This

Court in the absence of any documentary evidence

regarding income, takes into consideration the guidelines

issued by the Karnataka State Legal Services Authority,

wherein the notional income of the victims of the road

traffic accident for the year 2015 is determined at

Rs.8,000/- per month. The same is taken in this case as

well. The Tribunal has not awarded any amount towards

future prospects. In view of the law laid down by the

Hon'ble Apex Court in the case of Pranay Sethi, 40% of

the income has to be added towards future prospects.

Since the deceased left behind 4 dependents, 1/4th needs

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to be deducted towards his personal and leaving expenses.

The age of the deceased being 28 years, multiplier of '17'

is applied. Calculated as above, the appellants would be

entitled for total compensation of Rs.17,13,600/-

(Rs.8,000 + 40% x 12 x 17 x 3/4) towards loss of

dependency.

13. In view of the law laid down by the Hon'ble

Apex Court in the 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 wife, children and mother of the deceased respectively

are entitled for Rs.40,000/- each i.e., Rs.1,60,000/-

towards loss of consortium.

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14. Further, the appellants are entitled for

Rs.15,000/- towards loss of estate and Rs.15,000/-

towards funeral expenses.

15. That apart, in view of the law laid down by the

Hon'ble Apex Court in the case of Pranay Sethi (supra),

there shall be increment of 10% on the compensation

awarded under conventional heads.

16. Thus, the claimants are held entitled for a total

compensation of Rs.19,22,600/- instead of Rs.11,31,000/-

awarded by the Tribunal as under:

 Sl.           Heads                      By                     By
 No.                                   Tribunal              this Court
 1     Loss of dependency   Rs.10,71,000/- Rs.17,13,600/-
 2     Loss of consortium      Rs.25,000/-  Rs.1,60,000/-
 3     Loss of estate          Rs.20,000/-    Rs.15,000/-
 4     Funeral expenses        Rs.15,000/-    Rs.15,000/-
       Addition of 10%                        Rs.19,000/-
       Total              Rs.11,31,000/- Rs.19,22,600/-

17. For the foregoing reasons, the following:

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                                  NC: 2023:KHC-K:8844





                   ORDER

a) MFA         No.200913/2020                    and          MFA

No.200914/2020 filed by the NWKRTC are dismissed.

b) MFA No.200932/2021 filed by the claimants in MVC No.111/2016 is partly allowed. The appellants/claimants are held entitled for a total compensation of Rs.19,22,600/- instead of Rs.11,31,000/- awarded by the Tribunal with interest at 6% per annum from the date of claim petition till realization.

c) Appellant - NWKRTC in MFA No.200931/2021 and MFA No.200932/2022 shall deposit the aforesaid compensation amount within a period of six weeks from the date of receipt of certified copy of this judgment.