Karnataka High Court
The Divisional Controller vs Razia And Anr on 2 August, 2024
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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MFA No. 200996 of 2022
C/W MFA No. 201209 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISC. FIRST APPEAL NO.200996 OF 2022 (MV-I)
C/W
MISC. FIRST APPEAL NO.201209 OF 2021 (MV-D)
IN M.F.A NO.200996/2022:
BETWEEN:
1. RAZIA
W/O SAYYED ALI SHAIKH,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O NITYANAND SHAKTI APARTMENT,
B-104, MAHANAGAR PALIKA ROAD,
Digitally signed OPP: RAJIV GANDHI HIGH SCHOOL,
by SHILPA R NILEGAON NALASOPARA WEST,
TENIHALLI
Location: HIGH DISTRICT: THANE - 401 209.
COURT OF
KARNATAKA 2. SAIFALI
S/O SAYYED ALI SHAIKH,
AGE: 26 YEARS,OCC: SERVICE,
R/O NITYANAND SHAKTI APARTMENT,
B-104, MAHANAGAR PALIKA ROAD,
OPP: RAJIV GANDHI HIGH SCHOOL,
NILEGAON NALASOPARA WEST,
DISTRICT: THANE - 401 209.
...APPELLANTS
(BY SRI B. K. HIREMATH, ADVOCATE)
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MFA No. 200996 of 2022
C/W MFA No. 201209 of 2021
AND:
THE DIVISIONAL CONTROLLER
NEKRTC, ATHANI ROAD,
VIJAYAPURA- 586 108.
...RESPONDENT
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.V AT VIJAYAPURA IN MVC NO.527/2019 DATED
09.12.2020 AND ENHANCE THE COMPENSATION AMOUNT AS
PRAYED FOR, HOLDING BOTH THE RESPONDENTS LIABLE TO
PAY THE ENHANCED COMPENSATION TO THE APPELLANTS, IN
THE INTEREST OF JUSTICE.
IN M.F.A NO.201209/2021:
BETWEEN:
THE DIVISIONAL CONTROLLER
NEKRTC, ATHANI ROAD,
VIJAYAPUR,
NOW REPRESENTED BY
CHIEF LAW OFFICER,
NEKRTC, CENTRAL OFFICES,
SARIGE SADANA,
KALABURAGI - 585 102.
...APPELLANT
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)
AND:
1. RAZIA
W/O SAYYED ALI SHAIKH,
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O NITYANAND SHAKTI APARTMENT,
B-104, MAHANAGAR PALIKA ROAD,
OPP: RAJIV GANDHI HIGH SCHOOL,
NILEGAON NALASOPARA WEST,
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MFA No. 200996 of 2022
C/W MFA No. 201209 of 2021
DISTRICT: THANE - 401 203.
2. SAIFALI
S/O SAYYED ALI SHAIKH,
AGE: 25 YEARS,
OCC: SERVICE,
R/O NITYANAND SHAKTI APARTMENT,
B-104, MAHANAGAR PALIKA ROAD,
OPP: RAJIV GANDHI HIGH SCHOOL,
NILEGAON NALASOPARA WEST,
DISTRICT: THANE - 401 203.
...RESPONDENTS
(BY SRI B. K. HIREMATH, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, PRAYING TO ALLOW THIS APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD IN
MVC NO.527/2019, DATED 09.12.2020, BY THE PRL. SENIOR
CIVIL JUDGE AND CJM AND MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.V, AT VIJAYAPURA, IN THE INTEREST OF
JUSTICE.
THESE APPEALS HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals arise out of a single judgment
passed in MVC No.527/2019 dated 09.12.2020 by the
Principal Civil Judge and CJM and Motor Accident Claims
Tribunal No.V, Vijayapur (for short 'Tribunal').
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2. Though these appeals are at the stage of
admission, with the consent of learned counsel appearing
for both the parties, they are taken up for final disposal.
3. MFA No.200996/2022 is filed by the claimants
seeking enhancement of the compensation so awarded by
the Tribunal alleging that, the compensation so awarded is
on lower side. MFA No.201209/2021 is filed by the
respondent before the Tribunal i.e., the Divisional
Controller, NEKRTC Athani Road, Vijayapur, through its
Chief Law Officer, challenging the liability as well as
quantum of compensation.
4. Heard the learned counsel for the
appellants/claimants and respondent/NEKRTC in both
these matters at length.
5. The material on record would disclose that on
09.01.2019 at about 7.30 p.m., in front of Apex Hospital
road near Solapur railway station deceased Sayyed Ali
Shaikh was moving by walk towards railway station to go
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to Nalasopara, Thane. At that time, driver of a bus
bearing registration No.KA-28/F-2033 owned by
respondent - NEKRTC by driving his bus in a rash and in
negligent manner endangering human life, dashed against
the said Sayyed Ali Shaikh. He sustained grievous injuries
on his person. Immediately, he was shifted to
Government Hospital, Solapur, but, the doctor declared
him as "died on the spot". To that effect, a complaint was
registered in Crime No.30/2019 by Solapur Sadar Bazar
Police Station. The claimant No.1 is the wife of the
deceased and claimant No.2 is his son, who were fully
depending upon the income of the deceased. At the time
of his death, the deceased was aged 55 years and was
working in a private company, drawing salary of
Rs.20,000/- per month. As the bread winner in the family
died in the accident, the claimants prayed to award
compensation of Rs.34,00,000/- with interest at the rate
of 18% per annum from the date of the accident.
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6. Upon service of notice, respondent - NEKRTC
appeared before the Tribunal and opposed the claim
petition denying the entire assertions made in the petition.
The very accident alleging rash and negligent driving of
the bus, age of the deceased, his income etc. are stoutly
denied by the respondent.
7. Based upon the rival pleadings of both the
parties, the learned Tribunal framed in all four issues.
Both the parties have laid their respective evidence both
oral and documentary. On hearing the arguments and on
evaluation of the evidence, the learned Tribunal has
refused to accept the line of defence taken up by the
respondent and proceeded to assess the compensation of
Rs.12,14,000/- (Rupees Twelve Lakhs Fourteen Thousand
only) under all the relevant heads, to be paid by the
respondent with interest at the rate of 6% per annum
from the date of petition till its realization.
8. Being aggrieved by the same, as stated above,
the claimants are seeking enhancement of compensation
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and the respondent - NEKRTC has challenged fastening of
liability to pay the compensation and according to the
respondent, the compensation so awarded by the Tribunal
is on higher side. This Court would take up the claimants
appeal first.
9. Having heard the arguments of learned counsel
for the appellants/claimants as well as learned counsel for
the respondent/NEKRTC and on perusal of the reasons
assigned by the Tribunal on issue Nos.1 to 4, the learned
Tribunal during the course of discussion from paragraph
No.10 to 26 has considered threadbare the nature of the
avocation of the deceased, dependency pleaded by the
claimants, income of the deceased and other aspects by
keeping in mind the judgment of the Apex Court, has
awarded the compensation in a sum of Rs.12,14,000/- in
all. The claimants are challenging inadequacy of the
compensation to be awarded, the Tribunal while
considering the income of the deceased has taken his
income at Rs.13,000/-per month. But, in view of the chart
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issued by the Karnataka State Legal Services Authority,
the notional income ought to have been reckoned at
Rs.13,250/- per month. As the deceased was aged 55
years, as per the judgment of the Apex Court in the case
of Sarla Verma vs. Delhi Transport Corporation
reported in 2009 ACJ 1298, the proper multiplier that is
applicable is '11'. In view of the judgment of the Apex
Court in the case of National Insurance Company
Limited vs. Pranay Sethi reported in AIR 2017 SC
5157 with regard to the future prospects, 10% of the
notional income is to be added to the monthly income of
the deceased. That means, Rs.13,250+Rs.1,325 being
10% of Rs.13,250. Thus, the total income of the deceased
is to be reckoned at Rs.14,575/-. As the deceased was a
married man, 1/3rd of his income is to be deducted
towards his personal expenses as per the law laid down in
the aforesaid judgment of the Apex Court. Thus, the total
loss of dependency including the future prospects is to be
calculated as Rs.14,575x12x11x2/3, which comes to
Rs.12,82,600/-.
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10. The learned Tribunal has not considered the
loss of consortium to both the claimants. As per the
judgment of the Apex Court stated supra, both the
claimants are entitled for consortium at the rate of
Rs.40,000/- each, but, the learned Tribunal has just
calculated Rs.40,000/-, which is incorrect. So far as the
compensation towards funeral expenses and loss of estate
is concerned, the Tribunal has rightly arrived at
Rs.15,000/- each, which in our opinion is correct. Thus,
the claimants are entitled for compensation as under:
Sl. Compensation
Different Heads
No. Amount
1. Loss of consortium (40,000x2) Rs.80,000/-
2. Funeral expenses Rs.15,000/-
3. Loss of estate Rs.15,000/-
Loss of dependency including Rs.12,82,600/-
4. future prospects
(14,575x12x11x2/3)
Total Rs.13,92,600/-
Less compensation awarded Rs.12,14,000/-
by the Tribunal
Enhanced compensation Rs.1,78,600/-
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11. Thus, the claimants are held entitled for
enhanced compensation of Rs.1,78,600/-. Accordingly,
the claimants' appeal is to be allowed in part holding that,
in addition to the compensation so awarded by the
Tribunal, the claimants are entitled for enhanced
compensation of Rs.1,78,600/-. However, as there would
be no delay in payment of future prospects, the claimants
are not entitled for interest on the future prospects.
12. Now with regard to the connected appeal in
MFA No.201209/2021 filed by the respondent -NEKRTC is
concerned, on perusal of the records placed on record by
both the side, it can be stated that, because of rash and
negligent driving of the bus by its driver, the said accident
has taken place in which the deceased succumbed to the
injuries, who was a pedestrian at the time of the accident.
For the tortious act of the servant, the master is liable.
Because of the tortious act of the driver, now the NEKRTC
being the master/owner of the NEKRTC bus is liable to pay
the compensation.
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13. Though the learned counsel for the respondent
- NEKRTC relied upon the evidence of PW.1 and RW.1 to
absolve from the liability to pay the compensation and
made available the depositions of PW.1 and RW.1. But,
PW.1 is consistent about rash and negligent driving of the
bus by its driver, so also the income being earned by the
deceased. RW.1 has justified in his evidence about his
driving and fastening negligence on the part of the
deceased. But, in view of the documentary evidence
produced by the claimants as well as the respondent,
when the bus was moving on a straight road, the driver of
the bus though anticipated a pedestrian on the road
dashed against him though had sufficient space on the
road towards his right side. It is a busy locality where the
bus was plying at that time, then the driver of the bus
ought to have been more cautious in driving the bus. But,
in this case, it is not so as per evidence brought on record
by the claimants. Even there is no evidence placed on
record by the respondent-NEKRTC with regard to the
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income of the deceased, his age etc. In the absence of
concrete evidence form the side of the respondent-
NEKRTC, it cannot be sated that, the respondent is able to
prove the defence so set up in the objection statement.
Therefore, if all these factual features coupled with the
findings of the Tribunal based upon the evidence led by
the parties and on appreciation of the evidence, has
concluded that, the claimants are entailed for the
compensation. The only mistake that has been committed
by the Tribunal is that, taking the notional income as the
basis for calculating the compensation. Except the same,
the learned Tribunal has not committed any legal or
factual error in awarding the compensation. Therefore,
there is no merit in the appeal filed by the NEKRTC,
Vijayapur and it is liable to be dismissed.
14. So far as the apportionment of the
compensation as ordered by the Tribunal is concerned, the
same is just and proper and requires no interference by
this Court. Accordingly, we pass the following.
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ORDER
a) MFA No.200996/2022 is allowed in part with
costs.
b) The claimants/appellants are held entitled for
enhanced compensation Rs.1,78,600/- in
addition to the award passed by the Tribunal
at Rs.12,14,000/- together with interest at the
rate of 6% per annum from the date of claim
petition till its realization.
c) The respondent/NEKRTC to deposit the
compensation amount within four weeks from
the date of this order.
d) The appeal filed by the NEKRTC in MFA
No.201209/2021 is dismissed.
e) There shall be modified award in the above
terms.
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f) In view of the appeal filed by NEKRTC being
dismissed, the amount in deposit is ordered to
be transmitted to the Tribunal for
disbursement in favour of the claimants.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SRT
List No.: 1 Sl No.:59
CT:BN
