Karnataka High Court
Smt. Sushilavva Alias Sushila W/O ... vs The Depot Manager on 1 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:2319-DB
MFA No. 101430 of 2021
C/W MFA No. 100909 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 101430 OF 2021 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100909 OF 2021
IN MFA NO.101430/2021
BETWEEN:
1. SMT. SUSHILAVVA @ SUSHILA,
W/O. DHAREPPA SASALATTI,
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O. KESARAGOPPA,
TQ: MUDHOL, DIST: BAGALKOT.
2. KUMAR HANAMANT S/O. DHAREPPA SASALATTI,
AGE: 23 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT.
Digitally signed by
LAXMAN
KATTIMANI
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
KATTIMANI
Date: 2024.02.16
3. KUMAR SUNIL S/O. DHAREPPA SASALATTI,
12:05:33 +0530
AGE: 20 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT.
4. KUMAR SHRISHAIL S/O. DHAREPPA SASALATTI,
AGE: 18 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT.
...APPELLANTS
(BY SRI. BAHUBALI N. KANABARGI, ADVOCATE)
AND:
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NC: 2024:KHC-D:2319-DB
MFA No. 101430 of 2021
C/W MFA No. 100909 of 2021
1. THE DEPOT MANAGER,
NWKRTC GOKAK,
OWNER OF BUS BEARING NO.KA-23/F973.
2. THE DIVISIONAL MANAGER,
NWKRTC CHIKKODI,
OWNER OF BUS BEARING NO.KA-23/F973.
...RESPONDENTS
(BY SRI. S. L. MATTI, ADVOCATE)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND
MODIFIED THE JUDGMENT AND AWARD DATED 05.11.2020 PASSED
BY THE XII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI
SITTING AT GOKAK IN M.V.C NO.2085/2018, THE TRIBUNA
AWARDED COMPENSATION OF RS. 31,76,000/- AND INTEREST AT
THE RATE OF 6%, AND ENHANCE THE COMPENSATION AS CLAIMED
BY THE APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.100909/2021
BETWEEN:
1. THE DEPOT MANAGER,
N.W.K.R.T.C, GOKAK.
2. THE DIVISIONAL MANAGER,
N.W.K.R.T.C, CHIKKODI,
R/BY AUTHORIZED SIGNATORY,
CHIEF LAW OFFICER, N.W.K.R.T.C,
CENTRAL OFFICE, GOKUL ROAD,
HUBBALLI-580030.
...APPELLANTS
(BY SRI. S. L. MATTI, ADVOCATE)
AND:
1. SMT. SUSHILAVVA @ SUSHILA,
W/O. DHAREPPA SASALATTI,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT-587312.
2. KUMAR HANAMANT S/O. DHAREPPA SASALATTI,
AGE: 23 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT-587312.
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NC: 2024:KHC-D:2319-DB
MFA No. 101430 of 2021
C/W MFA No. 100909 of 2021
3. KUMAR SUNIL S/O. DHAREPPA SASALATTI,
AGE: 20 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT-587312.
4. KUMAR SHRISHAIL S/O. DHAREPPA SASALATTI,
AGE: 18 YEARS, OCC: STUDENT,
R/O. KESARAGOPPA, TQ: MUDHOL,
DIST: BAGALKOT-587312.
...RESPONDENTS
(BY SRI. BAHUBALI N. KANABARGI, ADVOCATE)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE
XII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT
GOKAK, DATED 05.11.2020 IN M.V.C NO.2085/2018 AND AWARDED
REASONABLE COMPENSATION, IN THE ENDS OF JUSTICE AND
EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, it is
taken up for final disposal with the consent of learned
counsel for both the parties.
2. MFA No.101430/2021 is by the claimants for
enhancement of compensation and MFA No.100909/2021
by the NWKRTC questioning the liability, contributing
negligence and quantum. The parties are referred to as
per their ranks before the Tribunal for convenience.
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3. The claimants being wife and children of
Dhareppa Sasalatti, preferred claim petition under Section
166 of Motor Vehicles Act, 1988, on death of Dhareppa
due to road traffic accident on 30.10.2017 involving bus
bearing No.KA-23/F-973. It is pleaded that petitioner was
aged 46 years, earning a sum of Rs.50,000/- per month
from Milk Vending and Rs.10,00,000/- per annum from
agriculture work. Thus, claimed compensation of
Rs.50,00,000/-.
4. On issuance of notice respondents appeared
through their counsels and filed their objections denying
petition averments. It is contended that the accident was
due to rash and negligent riding of deceased himself, no
negligence on the part of the driver of the offending bus.
On the above contentions, prayed to dismiss the petition.
5. The first petitioner examined herself as PW1
and marked Exs.P1 to P33. Respondents examined driver
and conductor of the offending vehicle as RW1 and RW2
and no documents were marked. The Tribunal on
appreciation of the evidence determined the income of the
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deceased as Rs.3,00,000/- per annum including income
from Milk Vending. Considered the age of deceased as 46
years. Deducted 1/4th towards personal expenses and
applied multiplier 13. The total compensation awarded by
Tribunal is as under:
Sl.
Heads of Compensation Amount
No.
1. Loss of Dependency 36,56,250.00
Loss of Consortium towards
2. 75,000.00
transportation, Estate.
3. Loss of Cost of Litigation 5,000.00
Total 37,36,250.00
6. Heard Shri. Bahubali N.Kanabargi, learned
counsel for the appellants/claimant and Shri.S.L. Matti for
the respondents.
7. The learned counsel for the
appellant/petitioners submits that the deceased was
earning a sum of Rs.50,000/- per month from Milk
Vending and Rs.10,00,000/- from agriculture income. The
deceased was cultivating agriculture in 6 acres 13 guntas
and relies on Exs.P9 to P15 RTCs. Learned counsel would
further submit that the deceased was doing Milk Vending
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and earning substantial income. In support of the above
contention relies on Exs.P22 to 29 Bank passbooks. It is
further submitted that the deceased was owning tractor
and trailer as per Exs.P30 to 33 and contends that
deceased was carrying on agricultural activities. It is
further submitted that Rs.3,000/- income considered by
the Tribunal from Milk Vending business is on the lower
side.
8. Per contra, learned counsel for the respondent
submits that the monthly income considered at
Rs.25,000/- per month is without any basis. No income
proof has been produced to establish any income from
agriculture. It is further submitted that merely on the
entries in the passbook, it cannot be considered that the
transactions in the bank passbooks are income of the
deceased. The learned counsel further submits that the
multiplier applied is incorrect.
9. Learned counsel for the respondents submits
that the accident occurred due to rash and negligent
driving of motorcycle by the deceased himself, the
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percentage of contributory negligence to the driver of the
bus is on the higher side. Further submits that total
compensation awarded by the Tribunal is on the higher
side.
10. Having heard the learned counsel for the
parties, perused the appeal papers, the only point that
arises for our consideration is as to "Whether the
compensation awarded by the Tribunal warrants
interference of this Court?"
11. Our answer to the above point is in 'affirmative'
for the following reasons.
12. The death of deceased Dhareppa on 30.10.2017
due to road traffic accident involving bus bearing No.KA-
23/F-973 is not in dispute in this appeal. The Tribunal
computed the income of the deceased on the basis of RTCs
at Exs.P9 to 15, tractor and trailer documents Exs.P30 to
33. The Tribunal further relied on the pass books Exs.P20
to P29 to estimate the income of the deceased. The
Tribunal committed an error in estimating the income on
the basis of the Debits and Credits in the pass books. Mere
NC: 2024:KHC-D:2319-DB
entries in the pass books would not be sufficient to
compute income of the deceased. No evidence has been
produced or proved by the petitioners that all entries in
the pass books are income of the deceased. The Tribunal
further committed an error in accepting the source of
income from Milk Vending on the basis of passbook entries
at Exs.P22 to 29. Burden is on the petitioners to prove
that credits in the passbooks are from vending milk to
consider the entries in the said passbooks as income from
milk vending. Merely, because the deceased was
possessing lands as per Exs.P9 to 15, the Tribunal is not
justified in assuming the income from agriculture in the
absence of any evidence to prove earning of any income
from cultivation prior to death of the deceased.
13. The petitioners have claimed that the deceased
was earning a sum of Rs.50,00,000/- per annum from
agriculture and Rs.50,000/- from Milk Vending business.
No evidence is placed to prove income from agriculture or
milk vending. In the absence of any evidence to prove the
earning of the deceased, the income of the deceased is to
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be assessed notionally. On the basis of the chart prepared
by the KSLA, considering the wages and expenses during
2017(year of death), Notional income is considered at
Rs.10,250/- per month. By considering the extent of land
of 6 acres 13 guntas, we deem it appropriate that due to
death of the deceased, the petitioners have to incur
expenditure towards supervision charges. Hence, we
award a sum of Rs.3,000/- towards supervisory charges.
The petitioners though claimed that deceased was earning
Rs.50,000/- per month from Milk Vending business, no
evidence is placed on record to substantiate the said
amount of income from Milk Vending business. Considering
the extent of land holding by the deceased and entries in
Ex.P25, we deem it appropriate to consider the income at
Rs.3,000/- from Milk Vending business. In total the income
of the deceased is considered at Rs.16,250/- per month.
The age of the deceased is considered as 46 years on the
basis of Ex.P21-Driving license. No contrary evidence is
placed on record. We uphold the age of the deceased at 46
years and apply multiplier 13 as per decision of Sarla
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NC: 2024:KHC-D:2319-DB
Verma case. Considering all the four claimants as
dependants as per the law laid down by National
Insurance Company Limited Vs. Pranay Sethi &
others1, 1/4th of the computed income is deducted
towards personal expenses. Considering the age and
avocation of the deceased, the income determined is to be
further increased by 25% towards future prospects as per
Pranay Sethi. Thus, the claimants would be entitled for
compensation on the head of loss of dependency at
Rs.23,76,563/- (Rs.16,250 + 25/100 x 12 x 13 x ¾)
14. The Tribunal has awarded a sum of Rs.75,000/-
under the head loss of estate, Consortium and funeral
expenses. In terms of the judgment of Hon'ble Apex Court
in the case of Pranay Sethi, petitioner No.1 is entitled for
sum of Rs.70,000/- towards loss of estate, spousal
consortium and funeral expenses. Petitioner Nos.2 to 4
would be entitled for a sum of Rs.40,000/- each under
2017 ACJ 2700
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NC: 2024:KHC-D:2319-DB
filial Consortium. As per Pranay Sethi(supra)
Conventional heads to be added by 10%.
15. In view of our above findings, the total
compensation is recomputed as under.
Sl.
Heads of Compensation Amount
No.
1. Loss of dependency Rs.23,76,563.00
2. Loss of consortium Rs.1,76,000.00
3. Loss of estate Rs.16,500.00
4. Funeral expenses Rs.16,500.00
Total Rs.25,85,563.00
Amount awarded by Tribunal Rs.37,36,250.00
Reduction Rs.11,50,687.00
16. The learned counsel for the respondent has
vehemently contended that the accident was due to rash
and negligence of the deceased himself.
17. In alternative learned counsels submits that the
percentage of negligence at 75% on the respondent is on
the higher side and prays for redetermination. Ex.P3 crime
details form along with spot and hand written sketch is
placed before the Court by both the parties. As seen from
the sketch the bus was travelling from Mahalingpur to
Mudhol. The deceased was travelling from Sanganatti road
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and entering the Mudhol-Nippanni State highway. The
deceased was entering the State highway which is a T-
junction. The T-junction was on the left hand side of the
bus. As per the sketch the accident occurred beyond the
extreme right of Mudhol-Nippanni State highway. The
impact has taken place on the extreme right of the road.
In the circumstances, the accident cannot be held to be
only due to the negligence of the deceased. In the
circumstances Tribunal is justified in holding 85%
negligence on the driver of the bus and 15% negligence on
the deceased. In the facts and circumstances of the
present case we are of the considered opinion that the
apportionment of the negligence by the Tribunal does not
call for interference. For the aforesaid reasons the
following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and award of
Tribunal is modified to an extent that the
claimants are entitled to total
compensation of Rs.25,85,563/- as
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against Rs.37,36,250/- awarded by the
Tribunal.
c) The appellant-Insurer shall deposit the
remaining compensation amount if any
with accrued interest before the Tribunal
within a period of six weeks from the date
of receipt of certified copy of this
judgment.
d) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records. If
deposit is in excess of award, the same
shall be returned to Insurer.
e) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RKM
