Karnataka High Court

The Divisional Controller vs Ningavva @ Ningamma on 2 April, 2024

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                                                             NC: 2024:KHC-D:6001
                                                     MFA No. 101886 of 2016
                                                 C/W MFA No. 101890 of 2016




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 2ND DAY OF APRIL, 2024

                                             BEFORE
                          THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                   MISCELLANEOUS FIRST APPEAL NO. 101886 OF 2016 (MV-D)
                                          C/W
                      MISCELLANEOUS FIRST APPEAL NO. 101890 OF 2016

                   IN MFA NO. 101886 OF 2016

                   BETWEEN:

                   NINGAVVA @ NINGAMMA D/O. LATE DURUGAPPA,
                   AGE: 43 YEARS, OCC: COOLIE,
                   R/O. SONNA VILLAGE, H.B. HALLI TALUK,
                   BALLARI DIST. NOW R/O. KAPPAGAL ROAD, BALLARI.

                                                                    ...APPELLANT
                   (BY SRI. ANJANEYA M, AND
                       SRI. T. HANUMAREDDY, ADVOCATES)

                   AND:
Digitally signed
by ROHAN           1.   PARASURAMA S/O. HUSSAINAPPA,
HADIMANI T
                        AGE: MAJOR, DRIVER OF THE K.S.R.T.C.
Location: HIGH
COURT OF                BUS BEARING REG. NO.KA-18/GO547,
KARNATAKA               R/O. MUDIGERE DEPOT, MUDIGERE TALUK,
                        CHIKKA MANGALORE DIST.

                   2.   THE DIVISIONAL CONTROLLER,
                        KSRTC, BENGALURU,
                        MUDIGERE DIVISION, MUDIGERE DEPOT,
                        CHIKKAMANGALORE DIST.

                   3.   GUDDAPPA S/O. LATE DURUGAPPA,
                        AGE: 41 YEARS, OCC: COOLIE,
                        R/O. SONNA VILLAGE,
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                                           NC: 2024:KHC-D:6001
                                      MFA No. 101886 of 2016
                                  C/W MFA No. 101890 of 2016



      H.B. HALLI TALUK, BALLARI DIST,
      NOW R/O: KAPPAGAL ROAD, BALLARI.

                                               ...RESPONDENTS
(BY SRI. S. C. BHUTI, ADV. FOR R2;
    NOTICE TO R1 DISPENSED WITH,
    NOTICE TO R3 SERVED)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
THE MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
HEAR THE PARTIES AND MAY KINDLY BE MODIFIED THE JUDGMENT
AND    AWARD    DATED   14-01-2016   PASSED   BY   THE   MOTOR
ACCIDENTS CLAIM TRIBUNAL-II, BALLARI, IN MVC NO.511/2016, BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND
EQUITY.


IN MFA NO. 101890 OF 2016

BETWEEN:

THE DIVISIONAL CONTROLLER,
KSRTC, BENGALURU,
MUDIGERE DIVISION, MUDIGERE DEPOT,
CHIKKAMANGALORE DIST: 577132,
NOW BY THE MANAGING DIRECTOR,
K.S.R.T.C. CENTRAL OFFICES,
K.H. ROAD, SHANTHINAGAR,
BENGALURU-560027,
REPRESENTED BY ITS, CHIEF LAW OFFICER.

                                                   ...APPELLANT
(BY SRI. S. C. BHUTI, ADVOCATE)

AND:

1.    NINGAVVA @ NINGAMMA
      D/O. LATE DURGAPPA,
      AGED 43 YEARS, COOLIE,
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                                           NC: 2024:KHC-D:6001
                                    MFA No. 101886 of 2016
                                C/W MFA No. 101890 of 2016



     R/O. SONNA VILLAGE,
     H.B. HALLI TALUK,
     BALLARI DIST: 583212,
     NOW R/O. KAPPAGAL ROAD,
     BALLARI-583101.

2.   GUDDAPPA S/O. LATE DURGAPPA,
     AGE: 41 YEARS, COOLIE,
     R/O. SONNA VILLAGE,
     H.B. HALLI TALUK,
     BALLARI DIST-583212
     NOW R/O. KAPPAGAL ROAD,
     BALLARI-583101.

3.   PARASURAMA S/O. HUSSAINAPPA,
     AGE: MAJOR, DRIVER OF THE KSRTC BUS
     BEARING REG.NO.KA-18/G0547,
     R/O. MUDIGERE DEPOT,
     MUDIGERE TALUK,
     CHIKKAMANGALORE DIST: 577132.

                                               ...RESPONDENTS
(NOTICE TO R1 & R2 SERVED,
 NOTICE TO R3 DISPENSED WITH)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
THE MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE
RECORDS MODIFY/SET ASIDE THE JUDGMENT AND AWARD IN MVC
NO.511/2013 DATED 14.01.2016 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL-II, BALLARI, IN RESPECT OF FIXING
THE ENTIRE LIABILITY ON THE APPELLANT AND ALSO THE QUANTUM
OF AWARD AMOUNT, WHICH IS AT HIGHER SIDE, IN THE INTEREST
OF JUSTICE AND EQUITY.


      THESE   APPEALS,   COMING     ON   FOR    HEARING    ON
INTERLOCUTORY APPLICATION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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                                                NC: 2024:KHC-D:6001
                                         MFA No. 101886 of 2016
                                     C/W MFA No. 101890 of 2016



                               JUDGMENT

1. MFA.No.101886/2016 is filed by the claimants

seeking enhancement of compensation. MFA.No.101890/2016

is filed by the Corporation challenging the quantum of

compensation awarded by the Tribunal as well as the liability

saddled on the appellant/Corporation.

2. Both the appeals are arising out of the judgment

and award dated 14.01.2016, passed in MVC No.511/2013 on

the file of MACT-II, Ballari (for short, 'Tribunal').

3. Sri.S.C.Bhuthi, learned counsel for the

appellant/Corporation submits that the Tribunal has committed

grave error in awarding compensation to the claimants and

computing of loss of dependency. Admittedly, both the

claimants are not depending on the income of the deceased. He

submits that claimant No.1 is Devadasi and she deposed before

the Tribunal that she used to take care of the deceased. It is

further submitted that the claimant No.2 is the son of the

deceased and after the marriage, he is residing with his wife in

a different village. Hence, award of compensation under the

head of loss of dependency is required to be interfered with. He

further submits that the accident in question has taken place in

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the middle of the road. Hence, some contributory negligency is

required to be saddled on the deceased.

4. Per contra, Sri.Anjaneya M., learned counsel for the

claimants submits that both the claimants are depending on the

income of the deceased. He submits that the police have filed a

charge sheet against the driver of the offending bus. Hence,

question of contributory negligence by the deceased would not

arise. He submits that the Tribunal has assessed the income of

the deceased at Rs.5,000/- p.m. which is required to be re-

assessed. He further submits that the Tribunal has failed to

award compensation under the head of loss of future prospects

of the deceased and compensation awarded by the Tribunal on

the other heads are also on the lower side. Hence, he seeks to

allow the appeal of the claimants.

5. I have heard the arguments of Sri.Anjaneya M,

learned counsel appearing for the claimants and Sri.S.C.

Bhuthi, learned counsel appearing for the respondent No.2/

Corporation and perused the material available on record.

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6. It is not in dispute that on 7.4.2013,

Smt.Huligemma met with an accident and succumbed to the

injuries sustained in the said accident.

7. Insofar as the contention of the learned counsel for

the appellant/Corporation that the claimant No.1 is not the

dependent of the deceased is concerned, PW.1 has clearly

deposed that she work in a scrap shop and used to take care of

medical and other expenses of the deceased. The stray

sentence in the evidence of PW.1 that she used to work in a

scrap shop cannot be the basis to hold that the claimant No.1 is

not the dependant of the deceased. The word 'dependency'

though not defined in the Motor Vehicle Act, it should be

understood in a broader sense, keeping in mind the object of

the Motor Vehicle Act, 1989. Admittedly, the claimant No.1 is a

Devadasi, which clearly indicates that she does not have any

regular or fixed income. Moreover, the claimant No.1 was

unmarried and was residing along with the deceased under one

roof. Hence, the claimant No.1 is a dependent of the deceased.

8. Insofar as claimant No.2 is concerned, though PW.2

has deposed that the claimant No.2 was residing along with his

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wife, that itself would not be a ground to come to the

conclusion that the claimant No.2 was not depending on the

income of the deceased.

9. Admittedly, the Insurance Company has not made

any attempt to adduce the evidence of independent witness nor

it has produced any documents with regard to the dependency

of claimants, except making written statement before the

Tribunal. Hence, in the absence of any contrary evidence on

record this court holds that the claimant No.2 is dependant of

the deceased. It would be useful to refer decision of the Hon'ble

Supreme Court in the case of National Insurance Company

Ltd., V/s. Birender and others , reported in 2020 SCC 759,

at paragraph No.15 of the judgment it is held as follows:

15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between

NC: 2024:KHC-D:6001

Rs.1,00,000 and Rs.1,50,000 per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.

10. Keeping in mind enunciation of law laid down by the

Hon'ble Supreme Court and evidence available on record, this

Court holds that the appellants are the dependants of deceased

are entitled to compensation under the head of loss of

dependency.

11. The appellants are entitled to an addition of 10% of

the assessed income of the deceased under the head of loss of

future prospects of the deceased. The material evidence

available on record indicates that the deceased was working as

coolie. Taking note of the said pleading and evidence of PW.1,

this Court re-assesses the notional income of the deceased at

Rs.7,000/- p.m. The deceased was aged about 55 years at the

time of accident. Hence, appropriate multiplier would be 11.

Thus, the appellants are entitled to compensation under the

head of loss of dependency as under:

7,000 + 10 % X 12 X 11 x 2/3 = Rs.6,77,600/-

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12. The claimants are daughter and son of the

deceased and they are also entitled to Rs.88,000/- (44,000x2)

under the head of loss of consortium with 10% escalation. The

appellants are also entitled to Rs.16,500/- under the head of

transportation of dead body and funeral expenses and

Rs.16,500/- under the head of loss of estate.

13. Insofar as the contributory negligency is concerned,

there is no cogent evidence available on record that the

deceased has contributed to the accident in question. No doubt,

the accident has taken place in the middle of the road that itself

cannot be a ground to hold that the deceased has contributed

to the accident in question. Moreover, the police have filed

charge sheet against the driver of the offending bus and the

appellant/Corporation has not adduced any evidence with

regard to contributory negligency of the deceased. Hence, in

the absence of any such evidence, I do not find any error in the

finding recorded by the Tribunal with regard to saddling of the

liability on the appellant/Corporation.

14. Thus, the appellants/claimants would be entitled to

modified compensation on the following heads:

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                     Particulars                    Amount
                                                    (in Rs.)
        Loss of dependency                           6,77,600/-
        Loss of estate                                 16,500/-
        Funeral expenses                               16,500/-
        Loss of consortium                             88,000/-
                         Total                      7,98,600/-

     Thus, the appellants/claimants      are entitled   to   total

compensation of Rs.7,98,600/- as against Rs.5,15,000/-

awarded by the Tribunal.

15. In the result, I proceed to pass the following:

ORDER

a) MFA.No.101886/2016 stands allowed in

part and MFA.No.101890/2016 stands

dismissed.

b) The impugned judgment and award of the

Tribunal is modified to an extent that the

appellants/claimants would be entitled to total

compensation of Rs.7,98,600/- as against

Rs.5,15,000/- awarded by the Tribunal.