Karnataka High Court
Jacob John vs The Managing Director on 14 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:3546-DB
MFA No. 102494 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH 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. 102494 OF 2019 (MV-D)
BETWEEN:
1. JACOB JOHN,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. 15G/1, DILSHAD COLONY,
DELHI, PINCODE: 110095.
2. MRS. SUSAMMA W/O. JACOB JOHN,
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O. 15/G1, DILSHED COLONY,
DELHI-110095.
...APPELLANTS
(BY SRI. MALLIKARJUN B. MADANALLI, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
Digitally signed by
CHANDRASHEKAR NWKRTC CENTRAL OFFICE,
LAXMAN NORTH-CANARA DIVISION SIRSI,
KATTIMANI
Date: 2024.02.24 FOR SERVICE OF SUMMONS,
10:55:18 +0530 THE DIVISIONAL CONTROLLER,
NWKRTC BELAGAVI,
DIVISION BELAGAVI-590001.
2. SOURABH KR MISHRA,
S/O. SHAMBHUNATH MISHRA,
AGE: 28 EYARS, OCC: STUDENT,
R/O. SECTOR 4D, Q.NO.2311,
B.S.CITY BOKARO KOLEBIRA SIMDEGA,
PERMANENT R/O. GANDAMIN,
POST: SHERUKHA,
DIST: SARAN, BIHAR-841417.
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NC: 2024:KHC-D:3546-DB
MFA No. 102494 of 2019
3. MR. BHAVESH KANTHIBAHI PETEL,
AGE: MAJOR, OCC: BUSINESS,
AT POST: CHARWADA,
KHODIYAR NAGAR, KOPARALI ROAD,
POST: CHEERI-396191, TQ: VAPI, DIST: VALSAD,
(GUJARAT STATE).
...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 AND 3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 10.12.2018 PASSED IN MVC NO.1502/2016 ON THE FILE OF
THE ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the claimant seeking enhancement of
compensation and also aggrieved against fixation of
contributory negligence on rider of the motorcycle.
2. The appellant/petitioners are parents of
deceased Sanjay S/o Jacob who died in road traffic
accident that has taken place on 03.03.2015 involving
motorcycle bearing No.GJ-15/AM-0847 and bus bearing
No.KA-31/F-1189. The deceased was pillion rider of a
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motorcycle. It is stated that the deceased was aged 24
years and studying in 2nd year MBBS at Shri. Nijalingappa
College, Navanagar, Bagalkot. The claimants further
claimed sum of Rs.1,50,000/- towards medical,
transportation and funeral expenses.
3. After service of notice, respondent Nos.1 and 2
appeared through their counsels and filed objections.
Respondent No.3 served and remained absent.
Respondent No.1 denying the petition averment contended
that though charge sheet has been filed against the driver
of KSRTC bus, same is challenged by driver. It is further
alleged that KSRTC bus was not involved in the alleged
accident.
4. The respondent No.2 rider of the motorcycle
denied the averments in the claim petition, place and time
of the accident. Further contended that accident was due
to rash and negligent diving of bus bearing No.KA-31/F-
1189 by its Driver.
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5. The petitioner No.1 examined himself as PW-1
and also examined PW-2 an eye witness and marked
Exs.P1 to P12. Respondent No.1 examined RW1 Driver of
the bus and marked Ex.R1. The Tribunal after analysis of
material evidence on record, awarded a sum of
Rs.3,40,000/. Considered the income of the deceased at
Rs.30,000/- per annum, deducted 50% towards personal
and living expenses and applied multiplier 18. The Tribunal
fixed 70% of negligence on the rider of the motorcycle and
30% on the KSRTC bus.
6. Heard Shri. Mallikarjun B. Madanalli, learned
counsel for appellant and Shri. S.S. Koliwad learned
counsel for respondent No.1. Respondent Nos.2 and 3 are
served and unrepresented.
7. Learned counsel for the appellant submits that
the deceased was aged 24 years and was studying in 2nd
year MBBS. On completion of his MBBS he would have
earned respectable income either by way of salary or from
profession. Hence, the income considered by the Tribunal
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at Rs.30,000/- per annum is on the lower side. Learned
counsel prays to consider the income of the deceased at
Rs.25,000/- per month. Learned counsel further submits
that the Tribunal committed an error in fixing contributory
negligence at 70% on the rider of motor cycle. The
accident occurred due to rash and negligent driving by the
driver of the bus. The Tribunal ought to have held that
the accident occurred due to negligence of the Driver of
the bus alone. Further submits that fixing of 70% of
negligence on the rider of the motorcycle is without any
basis and on the higher side.
8. Learned counsel appearing for the
respondent/KSRTC submits that the Tribunal by
considering that the deceased was only student studying
in 2nd year MBBS has rightly computed the income at
Rs.30,000/- per annum. The claim made by the claimants
is without any basis. The contributory negligence at 70%
on the rider of the motorcycle has been rightly arrived at
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on the basis of Ex.P4 and sketch. Thus, prays to dismiss
the appeal.
9. Having heard learned counsels for the parties,
on perusal of the appeal papers and records the point that
arise for consideration are:
i. Whether the Tribunal was justified in
fixing the negligence at 70% to 30%
on rider of the motorcycle and
KSRTC?
ii. Whether the compensation awarded
by the Tribunal needs modification?
10. Our answer to the above points are in the
'negative' and 'affirmative' respectively for the following
reasons.
11. The Tribunal while fixing the contributory
negligence has considered the contentions and the
evidence of both the parties. The Tribunal held that the
charge sheet has been filed against all the three
respondents i.e., Driver of the bus, rider of motor cycle
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and owner of motorcycle. It is the specific case of the
petitioner that while motorcycle overtaking the bus, to
avoid collusion with opposite vehicle, motorcycle met with
an accident due to negligent driving of the bus. However,
the Tribunal arrived at a conclusion that the accident has
taken place while two wheeler overtaking the bus, the
Driver of the bus would be unaware of the vehicle
overtaking the bus in the absence of any signal, the
accident has taken place due to the motorcycle having
touched the bus. Ex.P4 is hand sketch of the accident
spot. As per Ex.P4 the width of the road is 30 feet, the
accident occurred on the middle of the road. Considering
the width of the road, the driver of the bus was towards
center of the road. The accident in the middle of the road
has taken place due to negligence of both the bus and the
motorcycle. Attributing 70% of the negligence on the rider
of the motorcycle is on the higher side. Police on detailed
investigation have filed chargesheet against the driver of
bus and rider of motor cycle. We are of the view that the
rider of the motorcycle and the driver of the bus were
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equally negligent in riding/driving the respective vehicles.
Hence, we hold that the rider of the motorcycle and the
KSRTC bus are equally responsible for the accident and
liable to pay 50% of the compensation awarded.
12. The Tribunal considering the deceased was
studying in 2nd year MBBS assessed notional income at
Rs.30,000/- per annum. This Court in the similar
circumstances in MFA No.1982/2015 dated 07.01.2021
wherein, the deceased was aged 20 years and student of
2nd year MBBS has assessed the income at Rs.25,000/-
per month.
13. The facts and circumstances involved in MFA
No.1982/2015 and present case are identical. We are of
the view that in the present case also the income of the
deceased student who was studying in 2nd year MBBS is to
be considered at Rs.25,000/- per month. The deceased
was a bachelor, in view of law laid down by the Hon'ble
Apex Court in the case of Sarla Verma 50% of assessed
income is to be deducted towards personal expenses. The
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assessed income is to be further enhanced by 40%
towards future prospects as per judgment in the case of
National Insurance Company Limited Vs. Pranay
Sethi & others1. Considering the age of the deceased as
22 years and applicable multiplier is 18. Thus, the
claimants would be entitled for compensation on the head
of loss of dependency as under:
Rs.25,000 + 40% x 12 x 18 x 50% = Rs.37,80,000/-
14. The Tribunal committed an error in awarding a
sum of Rs.40,000/- only towards consortium. The
claimants being parents as per Magma General
Insurance Company Limited Vs. Nanu Ram & Others2
are entitled for Rs.40,000/- each under the head filial
consortium. Further claimants are entitled for
Rs.15,000/- towards loss of estate and Rs. 15,000/-
towards funeral expenses. Thus, the total modified
compensation is as under:
2017 ACJ 2700
2018 ACJ 2782
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Sl.
Heads of Compensation Amount in Rs.
No.
1. Loss of dependency 37,80,000.00
2. Loss of consortium(40,000x2) 80,000.00
3. Loss of estate & funeral expenses 30,000.00
Total 38,90,000.00
Amount awarded by Tribunal 3,40,000.00
Enhancement 35,50,000.00
15. Thus, the claimants would be entitled to total
compensation of Rs.38,90,000/- as against
Rs.3,40,000/- awarded by the Tribunal. Since this Court
has saddled contributory negligence on the deceased to an
extent of 50%, the claimants would be entitled to total
compensation of Rs.19,45,000/- (Rs.38,90,000 x 50%)
with interest at 6% per annum from the date of petition till
date of realization.
16. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to an extent
that the claimants are entitled to total
compensation of Rs.38,90,000/- as
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against Rs.3,40,000/- awarded by the
Tribunal.
c) The enhanced compensation amount of
Rs.35,50,000/- will bear interest at
the rate of 6% per annum from the
date of claim petition till date of
realization.
d) The respondent-Insurance Company
shall deposit the enhanced
compensation amount with accrued
interest before the Tribunal within six
weeks from the date of receipt of
certified copy of this judgment.
e) Apportionment, deposit and
disbursement of the enhanced
compensation amount shall be made as
per the award of the Tribunal.
f) Registry to transmit the records to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
