Karnataka High Court
Sri Babu Poojary vs The Divisional Controller on 4 January, 2024
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MFA No. 5942 of 2016
C/W MFA No. 3611 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 5942 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3611 OF 2016 (MV-D)
IN MFA No.5942/2016
BETWEEN:
1. SRI BABU POOJARY
W/O LATE SESAPPA POOJARY,
AGED ABOUT 55 YEARS,
R/AT NERLAJE HOUSE,
IDKIDU POST AND VILLAGE,
BANTWALA TALUK,
D.K.DISTRICT-574277
2. SMT YAMUNA
W/O SRI BABU POOJARY,
AGED ABOUT 50 YEARS,
Digitally R/AT NERLAJE HOUSE,
signed by IDKIDU POST AND VILLAGE,
BHARATHI S
Location: BANTWALA TALUK,
HIGH D.K.DISTRICT-574277
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. GIRIDHAR H., ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER
K.S.R.T.C. MANGALURU DEPOT,
MANGALURU,
D.K DISTRICT-575003
2. SRI KRISHAN KUMAR RAI
S/O RAJARAM RAI,
MAJOR,
-2-
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MFA No. 5942 of 2016
C/W MFA No. 3611 of 2016
R/O ARIKKILA HOUSE,
KOLTHIGE POST & VILLAGE,
PUTTTUR TALUK,
D.K.DISTRICT-574201
3. THE MANAGER
THE NATIONAL INSURANCE CO LTD,
I FLOOR, SHRI KSHETHRA
DHARMASTHALA BUILDING,
MAIN ROAD, PUTTUR TALUK,
D.K.DISTRICT-574201
...RESPONDENTS
(BY SRI K NAGARAJ IS DIRECTED TO TAKE NOTICE TO R1
V/O DTD 24/10/17
SMT GEETHA RAJ., ADVOCATE FOR R3 V/O DTD 16.1.2023
NOTICE TO R2 IS DISPENSED WTH V/O DTD 14.12.2013 )
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.03.2016 PASSED IN MVC
NO.551/2015 ON THE FILE OF THE V ADDITIONAL DISTRICT &
SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K.,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.3611/2016
BETWEEN:
1. THE DIVISIONAL CONTROLLER
KSRTC, MANGALURU DEPOT,
MANAGALURU, D.K
(POLICY NO. KARNATAKA GOVT.
ORDER NO.HTDMV 106/68
VALID UPTO 22.05.2015)
NOW THROUGH CHIEF LAW OFFICER,
KSRTC, BANGALORE.
...APPELLANT
(BY SRI. NAGARAJA K., ADVOCATE)
AND:
1. SRI BABU POOJARY
S/O LATE SESAPPA POOJARY,
AGED ABOUT 55 YEARS,
-3-
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MFA No. 5942 of 2016
C/W MFA No. 3611 of 2016
FATHER OF THE DECEASED
HARISH POOJARY,
2. SMT. YAMUNA
W/O SRI. BABU POOJARY,
AGED ABOUT 50 YEARS,
MOTHER OF THE DECEASED,
BOTH ARE R/AT NERLAJE HOUSE,
IDKIDU POST AND VILLAGE,
BANTWAL TALUK,
D.K. DISTRICT 574211.
3. SRI. KISHAN KUMAR RAI,
S/O SRI. RAJARAM RAI,
AGED MAJOR,
R/AT ARIKKILA HOUSE,
KOLTHIGE POST & VILLAGE,
PUTTUR TALUK & D.K.DISTRICT 574201.
4. THE MANAGER
NATIONAL INSURANCE CO. LTD.
1ST FLOOR, SHRI KSHETHRA
DHARMASTHALA BUILDING MAIN ROAD
PUTTUR TALUK, D.K.DISTRICT-574201
POLICY NO.602301/31/13/6300003225
...RESPONDENTS
(BY SRI.GIRIDHAR H., ADVOCATE FOR R1 & R2
SMT. H R RENUKA, ADVOCATE FOR R4
R3 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.03.2016 PASSED IN MVC
NO.551/2015 ON THE FILE OF THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K.,
AWARDING COMPENSATION OF Rs.13,67,500/- WITH INTEREST @
7% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 5942 of 2016
C/W MFA No. 3611 of 2016
JUDGMENT
MFA No.3611/2016 is filed by the KSRTC and MFA
No.5942/2016 is filed by the claimant. Since in both the
appeals challenge is to the judgment and award dated
5.3.2016 passed in MVC No.551/2015 by the V Additional
District and Sessions Judge, D.K., Mangaluru1, both the
appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein
are referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of
the present appeals are that one Sri Harish Poojary2 was
riding the motor cycle bearing No.KA-19/ED 8154 on
28.9.3025 from Puttur towards Mani when a KSRTC bearing
No.KA-19-F-2826 came from the oppose direction and there
was a collusion between the motor cycle and the bus
resulting in the accident in question wherein the deceased
sustained grievous injuries and succumbed to the same at
the spot. Claiming compensation for the death of the
Hereinafter referred to as the 'Tribunal'
Hereinafter referred to as the 'deceased'
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deceased, his parents filed a claim petition in MVC
No.551/2015 wherein, the owner of the bus - KSRTC was
arrayed as first respondent and the owner and insurer of the
motor cycle were arrayed as respondent Nos.2 and 3. The
proceedings before the Tribunal were contested by the
respondents. Claimant No.1 was examined as PW.1. An eye
witness was examined as PW.2. An employee of the
deceased was examined as PW.3 and the owner of the
premises where the deceased was carrying the business was
examined as PW.4. Exs.P1 to P14 were marked in the
evidence. The driver of the bus was examined as RW.1 and
Exs.R1 and R2 were marked in evidence.
4. The Tribunal upon an appreciation of the oral and
documentary evidence available on record by judgment and
award dated 5.3.2016 allowed the claim petition and
awarded a total compensation of Rs.15,75,000/-. The
Tribunal had recorded a finding of contributory negligence
and assessed the negligence at 90% on the driver of the bus
and 10% on the deceased. Hence, 90% of the compensation
amount i.e., a sum of Rs.14,17,500/- was ordered to be paid
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by the first respondent - KSRTC. Since KSRTC has paid
interim compensation of Rs.35,000/- and Rs.15,000/- as is
forthcoming from Exs.R1 and R2, out of the compensation
ordered to be paid by the KSRTC, a sum of Rs.50,000/- was
deducted and the KSRTC was ordered to pay a sum of
Rs.13,67,500/- together with interest at 7% pa. Being
aggrieved, the present appeals are filed.
5. In MFA No.3611/2016 the finding recorded by the
Tribunal regarding negligence as well as quantum of the
compensation has been challenged by the KSRTC.
6. In MFA No.5942/2016 it is the contention of the
claimant that the entire negligence ought to be attributed to
the driver of the bus and enhancement of compensation is
also sought for.
7. Learned counsel for the KSRTC assailing the
finding of the Tribunal contends:
7.1 That PW.2 in the cross-examination has
specifically stated that the accident occurred when the
deceased was overtaking an Alto car and he fell towards his
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right hand side after hitting the car. Hence, there was no
fault on the driver of the bus in causing the accident in
question;
7.2 That the road where the accident had occurred is
an upward gradient in the direction in which the bus was
travelling and hence, it cannot be said that the bus was in a
high speed;
7.3 That the Tribunal has not appreciated the factual
matrix as to the manner of the occurrence of the accident
and the finding of negligence at 90% on the driver of the bus
is erroneous;
7.4 That there was no basis for the Tribunal to assess
the income of the deceased at Rs.10,000/- pm., having
regard to the material on record and the said assessment is
required to be interfered with;
7.5 That the addition towards future prospects is
erroneous and hence, the quantum of compensation is on
the higher side;
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7.6 That PW.4 who is the owner of the premises in
which the deceased was carrying on business has
categorically stated that the deceased was working with
another person who was carrying on business in the
premises owned by PW.4 and hence, it cannot be said that
the deceased was carrying on the business.
7.7 Hence, he seeks for allowing of the appeal and
reducing the quantum of contributory negligence assessed as
well as reducing the quantum of compensation awarded.
8. Per contra, learned Counsel for the claimant
submits:
8.1 That the spot sketch Ex.P4 clearly demonstrates
the fact that the spot where the accident occurred was 6 feet
away from the left hand side of the road on the side of the
deceased, whereas there was a 16 feet gap between the
edge of the road on the left hand side of the bus where the
bus had hit the motor cycle. Hence, the entire negligence for
causing the accident ought to be saddled on the driver of the
bus;
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8.2 That the deceased was carrying on business and
the Trade Licence issued by Mani Gram Panchayath (Ex.P7)
stands in the name of the deceased. That various other
documents have been produced by the deceased to
demonstrate that he was carrying on the business. Hence,
the income ought to be assessed on a higher scale;
8.3 That PW.3 who is the employee of the deceased
has been examined who has clearly stated that apart from
PW.3 there were 9 other persons employed by the deceased
and they were being paid at Rs.500/- per day. Hence, it is
clear that the deceased was carrying on the business as
contended and the income ought to be assessed at a higher
amount;
8.4 He further submits that having regard to the
judgment in the case of National Insurance Company
Limited V. Pranay Sethi and others3 the compensation
awarded requires to be enhanced.
(2017) 16 SCC 680
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9. The submissions made by the learned counsel for
the parties have been considered and the material on record
has been perused. The questions that arise for consideration
are:
i) Whether the finding of negligence recorded by the
Tribunal is erroneous and liable to be interfered with?
ii) Whether the quantum of compensation awarded is
just and proper or warrants for interference?
Re.question(i):
10. The factum of occurrence of the accident is
undisputed. The question is with regard to the finding on
negligence and the assessment of the same at 90%:10%
made by the Tribunal. In this context, it is relevant to note
that PW.1 who is the father of the deceased is not an eye
witness to the accident. Hence, his testimony will not aid the
appreciation regarding negligence. PW.2 is an eye witness
who has stated in his cross-examination that deceased was
riding the motor cycle and when he was in the process of
overtaking the car in front of him he noticed the bus and he
did not proceed with the overtaking. At that moment, when
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he was about 6 feet away from the left hand side of the
road, he fell to the left and hit the car and thereafter, fell to
the right when he was run over by the bus. That there was
certain damage caused to the hind portion of the car.
11. It is forthcoming from the spot sketch (Ex.P4)
that the spot of the accident is at a distance of about 6 feet
from edge of the road on the left hand side in the direction in
which the motor cycle was travelling and about 16 feet on
the left hand side of the bus in the direction which it was
travelling. Hence, it is clear that the bus has crossed the
centre portion of the road and the spot of the accident is
towards the portion of the road in which the motor cycle was
travelling.
12. Learned counsel for the KSRTC vehemently
contended that the bus was moving in an upward gradient
direction and hence, it has to be presumed that it was slow
and there could not be any fault with the bus. Further, the
accident would not have occurred if the rider of the motor
cycle was not overtaking the car and that had the rider of
the motor cycle fell to the left hand side at which point of
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time he hit the car which resulted in the rider of the motor
cycle falling to his right hand side which resulted in him
coming under the wheels of the bus. However, it is relevant
to note that those are the circumstances in which the
accident has occurred.
13. PW.2 has, in his cross-examination clearly
described the manner in which the accident occurred i.e., at
the time when the motor cycle was overtaking the car and
upon noticing the bus coming from the opposite direction at
the time when he was overtaking the car, he did not proceed
further to overtake, when he hit the car and then fell to his
right side and he was run over by the bus.
14. Notwithstanding the manner in which the accident
occurred, the fact remains that the exact spot of the accident
is situated at 6 feet from the edge of the road on the left
hand side of the motor cycle and the distance between the
edge of the road on the left hand side of the bus is nearly 16
feet which clearly points to the irresistible conclusion that the
bus was moving on the right hand portion of the road and
had crossed the centre of the road and was on its wrong side
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of the road. It is absolutely clear from the same that the
spot of the accident having occurred in the left hand portion
of the road on which the motor cycle was travelling, it is the
driver of the bus who is required to be held as entirely
negligent for causing the accident in question. In view of the
same, the finding of negligence recorded by the Tribunal at
90% and 10% is erroneous and is required to be held that
the bus was entirely negligent in causing the accident in
question. Hence question No.(i) is accordingly answered.
Reg.question No.(ii):
15. With regard to the quantum of compensation, it is
the case of the claimants that the deceased was doing
business and was running a well known furniture shop apart
from the agricultural operations. In respect of the said case,
the business licence issued by the Gram Panchayath which is
issued in the name of the deceased has been produced as
Ex.P7. The claimants have produced Ex.P9 which are the
pass book of Idkidu Co-operative Society and Vijaya Bank as
well as Ex.P10 which are the Marks Card and TC of PU
College as also Ex.P11 which is the receipt issued by the
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Agrigold Farm Estates. Ex.P12 is the instalment payment
details of Shriram Chits. Ex.P13 is the Attendance book of
the workers working under the deceased. Ex.P14 is the
certificate for rent having been paid.
16. PW.3 is the employee of the deceased who has
deposed that apart from himself 9 persons were working
with the deceased and were receiving Rs.500/- per day.
PW.4 is the owner of the premises in which the deceased
was carrying on the business. He has specifically stated that
the business was carried on in the premises owned by him
has not been closed after the death of the deceased. He has
further stated in the cross-examination that the deceased
was working with the person who was carrying on the
business in the premises owned by him.
17. It is clear from the aforementioned, that no
specific documents have been produced to prove the income
of the deceased. However, it is forthcoming from the
documents produced that the deceased was educated and he
was carrying on the business. It is also forthcoming that he
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had employed persons who were working under him and the
business licence stood in his name.
18. It is the vehement contention of the KSRTC that
income as per the income chart that is being followed for
settlement of cases in Lok Adalath conducted by the High
Court Legal Services Committee which stipulates the income
at Rs.8,500/- is required to be taken since no documents
disclosing the income is produced. The said contention is not
liable to be accepted having regard to the fact that it cannot
be said that there is no document produced regarding the
income of the deceased.
19. It is forthcoming from the documents produced
by the claimants that the deceased being educated was
carrying on business activity. It is also forthcoming that the
deceased had obtained loan from the co-operative bank as
well as Vijaya Bank which aspect of the mater has been
appreciated by the Tribunal wherein, it is noticed that the
deceased had availed a loan of Rs.51,000/- on 26.9.2011
and Rs.20,000/- on 28.12.2011 and Rs.20000/- on
30.3.2013. Having regard to the fact he was carrying on
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business and he had employed 9 persons with him and he
was carrying on the business in the premises owned by
PW.4, it is just and proper that the income of the deceased
be re-assessed at Rs.12,000/- pm.
20. The deceased was aged 30 years and hence, the
appropriate multiplier to be applied is 17 as has been rightly
assessed by the Tribunal. Having regard to the judgment of
the Constitution Bench of the Hon'ble Supreme Court in the
came of Pranay Sethi3 40% of the income is required to be
added towards the future prospects. Hence, the income of
the deceased for the purpose of assessment of loss of
dependency is Rs.16,800/- pm. The deceased was
admittedly a bachelor. Hence, 50% of the income is
required to be deduced towards personal expenses. Hence,
the loss of dependency is reassessed at (Rs.8400/-x12x17)
Rs.17,13,600/-.
21. The Hon'ble Supreme Court in the case of
Magma General Insurance Company Limited vs.
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Nanu Ram Alias Chuhru Ram and others4 has held that
loss of consortium is to be awarded at Rs.40,000/- towards
filial compensation to each of the claimants. Hence, a sum
of Rs.80,000/- is awarded towards the same. A sum of
Rs.15,000/- is awarded towards funeral expenses and loss
of estate respectively.
22. Accordingly, the total compensation under
various heads is re-assessed as follows:
Sl.N Heads Amount awarded Amount awarded
o. by the Tribunal by this Court
(Rs.) (Rs.)
1. For transportation of dead 25000.00 15000.00
body and funeral
expenses
2. Loss of love and affection 10000.00 80000.00
3. Loss of estate 10000.00 15000.00
4. Loss of dependency 153000.00 1713600.00
Total 1575000.00 1823600.00
23. Hence, the Appellants are entitled for enhanced
compensation of Rs.2,48,600/- (Rs.18,23,600-
(2018) 18 SCC 130
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Rs.15,75,000) along with interest at 6% p.a. Out of the
enhanced compensation the interim compensation paid by
the KSRTC at Rs.50,000/- is to be deducted and hence,
the total enhanced compensation is Rs.1,98,600/-. The
question No.(ii) is accordingly answered.
24. In the result, the following order is passed:
ORDER
i) MFA No.3611/2016 filed by the KSRTC is
dismissed;
ii) MFA No.5942/2016 filed by the claimants is
allowed in part;
iii) The judgment and award dated 5.3.2016
passed in MVC No.551/2015 by the V Additional
District and Sessions Judge, D.K, Mangalore
sitting at Puttur, is modified to the extent
stated herein. In all other respects, the
judgment and award of the Tribunal remains
unaltered.
iv) The appellants/claimants are entitled for an
enhancement of Rs.1,98,600/- with interest at
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6% p.a. from the date of petition till its
realisation;
v) The appellant in MFA No.3611/2016 - the
KSRTC is directed to deposit the said
compensation together with accrued interest
within a period of eight weeks from the date of
receipt of a copy of this judgment;
vi) The apportionment, disbursement and deposit
of the enhanced compensation shall be as per
the award of the Tribunal.
vii) The amount deposited by the appellant in MFA
No.3611/2016 before this Court be transmitted
to the Tribunal for disbursement to the
claimants.
viii) The Registry to draw the modified decree
accordingly.
viii) No costs.
Sd/-
JUDGE
nd
