Karnataka High Court
D.C Nekrtc vs Sharamma And Ors on 24 July, 2024
-1-
NC: 2024:KHC-K:5261-DB
MFA No.201224 of 2022
C/W MFA No.202907 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.201224 OF 2022 (MV-D)
C/W
MISCL. FIRST APPEAL NO.202907 OF 2023 (MV-D)
IN M.F.A.NO.201224 OF 2022
BETWEEN:
D.C. NEKRTC
BIDAR DIVISION, BIDAR,
Digitally signed by (NOW REPRESENTED BY CHIEF
BASALINGAPPA LAW OFFICER, KALABURAGI)
SHIVARAJ
DHUTTARGAON ...APPELLANT
Location: HIGH
COURT OF
KARNATAKA (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. SHARAMMA
W/O SHIVARAJ KARKYALE,
AGE: 44 YEARS,
OCC: LABOUR,
2. SHIVARAJ
S/O SHAMRAO KARKYALE,
-2-
NC: 2024:KHC-K:5261-DB
MFA No.201224 of 2022
C/W MFA No.202907 of 2023
AGE: 49 YEARS,
OCC: LABOUR,
3. SHIMON
S/O SHIVARAJ KARKYALE,
AGE: 23 YEARS,
OCC: STUDENT,
ALL R/O: BHEEM NAGAR,
BHALKI, TQ: BHALKI,
DIST: BIDAR - 585 401.
...RESPONDENTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 28.12.2021 IN MVC
NO.561/2018 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDL. MACT, BHALKI, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN M.F.A.NO.202907 OF 2023
BETWEEN:
1. SHARAMMA
W/O SHIVARAJ KARKYALE,
AGE: 45 YEARS,
OCC: LABOUR,
2. SHIVARAJ
S/O SHAMRAO KARKYALE,
AGE: 50 YEARS,
OCC: LABOUR,
-3-
NC: 2024:KHC-K:5261-DB
MFA No.201224 of 2022
C/W MFA No.202907 of 2023
3. SHIMON
S/O SHIVARAJ KARKYALE,
AGE: 24 YEARS,
OCC: STUDENT,
ALL R/O: BHEEM NAGAR,
BHALKI, TQ: BHALKI,
DIST: BIDAR.
...APPELLANTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
AND:
THE DIVISIONAL COMMISSIONER,
N.E.K.R.T.C.,
BIDAR DIVISION,
BIDAR - 585 401.
...RESPONDENT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
MODIFY THE JUDGMENT AND AWARD DATED 28.12.2021,
PASSED BY THE SENIOR CIVIL JUDGE AND ADDITIONAL
M.A.C.T., BHALKI, AT BHALKI, IN M.V.C.NO.561/2018 AND
ENHANCE THE COMPENSATION AMOUNT AS CLAIMED BY THE
APPELLANTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
-4-
NC: 2024:KHC-K:5261-DB
MFA No.201224 of 2022
C/W MFA No.202907 of 2023
JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
These appeals are arising out of the judgment and
award dated 28.12.2021 passed in MVC No.561/2018 by the
Senior Civil Judge and Additional MACT, Bhalki at Bhalki (for
short hereinafter referred to as 'the Tribunal').
2. The appeal in MFA No.201224/2022 is filed by the
North East Karnataka Road Transport Corporation (for short,
hereinafter referred to as 'Corporation') and the appeal in
MFA No.202907/2023 is filed by the claimants.
3. For the sake of convenience, parties are referred
to as per their ranking before the Tribunal.
4. Facts giving rise to filing of these appeals are
that, on 30.10.2018 at about 3.45 p.m., the deceased-
Sachin S/o Shivraj Karkale was returning from Khandre
Petrol Bunk located on Bhalki-Humnabad road. When the
deceased came near Bhalkeshwar Temple, one NEKRTC bus
bearing registration No.KA-28/F-2050 came from opposite
NC: 2024:KHC-K:5261-DB
direction from Bhalki bus stop in a high speed and in a rash
and negligent manner and dashed to the motorcycle of the
deceased. As a result of the accident, rear wheel of the bus
ran over the body of Sachin and he died on the spot. The
criminal case was registered against the driver of the bus. It
is contended by the petitioners that the deceased-Sachin
was aged about 22 years and was working as Cook in the
marriage and other functions and was earning Rs.40,000/-
per month. He was maintaining the petitioners and he is the
sole bread earner in the family. Due to untimely death of
Sachin, the petitioners have lost their main bread earner.
Hence, the petitioners filed claim petition under Section 166
of the Motor Vehicles Act seeking compensation on account
of the death of Sachin in the road traffic accident.
5. The respondent-Corporation filed written
statement denying the averments made in the claim petition.
It is contended that the deceased-Sachin was not possessing
driving licence and was riding the motorcycle while talking on
mobile phone without wearing helmet and the driver of the
bus has driven the bus slowly and the driver has blown horn,
NC: 2024:KHC-K:5261-DB
but the rider of the motorcycle was riding the motorcycle in a
high speed and could not control the motorcycle. As a
result, the motorcycle got skid and the rider of the
motorcycle came under the rear wheel of the bus. There
was no negligence on the part of the driver of the bus.
Hence, prayed to dismiss the claim petition.
6. The Tribunal, on the basis of the pleadings of the
parties, framed the issues and recorded the evidence.
7. In order to establish the case, petitioner No.1
examined herself as PW.1 and examined two witnesses as
PWs.2 and 3 and got marked 09 documents as Exs.P1 to P9.
The driver of the bus was examined as RW.1 and got marked
one document as Ex.R1.
8. The Tribunal after recording the evidence, hearing
on both side and on assessment of oral and documentary
evidence on record, allowed the claim petition in part with
costs. It is ordered that petitioner Nos.1 to 3 are entitled for
total compensation of Rs.15,42,000/- along with interest at
the rate of 6% per annum from the date of petition till its
NC: 2024:KHC-K:5261-DB
realization and directed the respondent-Corporation to pay
the compensation along with interest and shall deposit the
same within 60 days from the date of the award.
9. The petitioners being dissatisfied with the
compensation awarded by the Tribunal have filed appeal in
MFA No.202907/2023. The respondent-Corporation has filed
appeal in MFA No.201224/2022 challenging the quantum of
compensation awarded by the Tribunal.
10. Heard the learned counsel for the petitioners and
learned counsel for the respondent-Corporation.
11. Learned counsel for the petitioners submits that
the compensation awarded by the Tribunal is on the lower
side. He further submits that the deceased was a cook and
was earning monthly income of Rs.40,000/- per month. He
submits that though the petitioners have not produced any
income proof, in the absence of income proof, the Tribunal
ought to have taken notional income as per the chart
prepared by the Karnataka State Legal Services Authority.
For the accident of the year 2018, the notional income as per
NC: 2024:KHC-K:5261-DB
the chart is Rs.11,750/- per month whereas, the Tribunal
has taken the income at Rs.10,000/- per month which is on
the lower side. He submits that the Tribunal was justified in
fastening in the liability on the respondent-Corporation. On
these grounds, he prays for allowing the appeal filed by the
petitioners and to dismiss the appeal filed by the
respondent-Corporation.
12. Per contra, learned counsel for the respondent-
Corporation submits that the accident has occurred due to
rash and negligent riding of the rider of the motorcycle i.e.,
deceased. There was no negligence on the part of the driver
of the offending bus. The Tribunal has committed an error in
fastening the liability on the respondent-Corporation. On
these grounds, she prays to allow the appeal filed by the
respondent-Corporation and to dismiss the appeal filed by
the petitioners.
13. We have perused the records and considered the
submissions of the learned counsel for the parties.
NC: 2024:KHC-K:5261-DB
14. The points that arise for our consideration are
with regard to liability and quantum of compensation
15. It is not in dispute that the deceased-Sachin met
with accident on 30.10.2018 and sustained grievous injuries
and succumbed to the injuries. In order to establish that the
accident has occurred due to rash and negligent driving of
the driver of the offending bus, the petitioners have
produced certified copy of the FIR marked as Ex.P1 and
certified copy of the charge sheet is marked as Ex.P9. From
the perusal of Ex.P9, it discloses that the accident has
occurred due to rash and negligent driving of the driver of
the offending bus. The charge sheet is filed against the
driver of the bus. The police have not filed any charge sheet
against the rider of the motorcycle i.e., deceased and it is
alleged that there was no negligence on the part of the rider
of the motorcycle i.e., deceased-Sachin. Thus, the Tribunal
was justified in recording a finding that the accident occurred
due to rash and negligent driving of the driver of the
offending bus and there was no negligence on the part of the
deceased and has rightly fastened liability on the
- 10 -
NC: 2024:KHC-K:5261-DB
respondent-Corporation. Further, the driver of the offending
bus who was examined as RW.1 though has deposed that
the accident has occurred due to dash and negligent riding of
the rider of the motorcycle i.e., the deceased, RW.1 has not
made any attempt to lodge the complaint against the
deceased alleging that he was riding the motorcycle in a rash
and negligent manner and lost control over the motorcycle
and has fallen down in the rear wheel of the bus. Due to
non-lodging of the complaint by RW.1, an adverse inference
has to be drawn against RW.1 that the accident has not
occurred due to rash and negligent riding of the rider of the
motorcycle i.e., deceased, but the accident has occurred due
to rash and negligent driving of the driver of the offending
bus. The Tribunal was justified in fastening in the liability on
the respondent-Corporation and hence, the same does not
call for any interference.
16. Insofar as quantum of compensation is
concerned, the petitioners have contended that the
deceased-Sachin was working as Cook and earning
Rs.40,000/- per month. Though they have examined two
- 11 -
NC: 2024:KHC-K:5261-DB
witnesses as PWs.2 and 3 to prove the income and avocation
of the deceased, but no documentary evidence is placed on
record by the petitioners. In the absence of proof of income,
the notional income of the deceased will have to be taken as
per the chart provided by the Karnataka State Legal Services
Authority. In terms of the chart, for the accident of the year
2018, the notional income of the deceased will have to be
taken at Rs.11,750/- as against Rs.10,000/- per month
taken by the Tribunal. To the aforesaid amount, as the
deceased was aged 22 years, 40% of the said amount has to
be added on account of future prospects in view of the law
laid down by the Constitution Bench of the Hon'ble Supreme
Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others reported in AIR
2017 SC 5157. Thus, the monthly income comes to
Rs.16,450/-. Since the deceased-Sachin was bachelor, we
deem it appropriate to deduct 50% of the said income
towards personal expenses of the deceased and therefore,
the monthly income of the deceased comes to Rs.8,225/-.
Taking into account the age of the deceased which was 22
- 12 -
NC: 2024:KHC-K:5261-DB
years at the time of accident, multiplier of 18 has to be
adopted as per the judgment of the Hon'ble Supreme Court
in the case of Sarla Verma vs. Delhi Transport
Corporation reported in (2009) 6 SCC 121. Therefore,
the petitioners are entitled to a sum of Rs.17,76,600/-
(Rs.8,225/- x 12 x 18) on account of loss of dependency.
17. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC 130,
each petitioner is entitled to a sum of Rs.44,000/- towards
loss of consortium. The petitioners are three in number,
hence the compensation towards loss of consortium would be
Rs.1,32,000/- (44,000 x 3). In addition, the
petitioners/appellants are entitled a sum of Rs.16,500/-
towards funeral expenses and Rs.16,500/- under the head of
loss of estate.
18. Thus, in all, the petitioners are entitled to a total
compensation of Rs.19,41,600/- as against Rs.15,42,000/-
- 13 -
NC: 2024:KHC-K:5261-DB
awarded by the Tribunal. The petitioners are entitled for
enhanced compensation of Rs.3,99,600/- rounded off to
Rs.4,00,000/-.
19. Accordingly, we proceed to pass the following:
ORDER
i. The appeal filed by the Corporation in MFA
No.201224/2022 is dismissed.
ii. The appeal filed by the petitioners in MFA
No.202907/2023 is allowed in part.
iii. The impugned judgment and award dated
28.12.2021 in MVC No.561/2018 passed by
the Senior Civil Judge and Additional MACT,
Bhalki, is modified.
iv. The petitioners are entitled for an enhanced
compensation of Rs.4,00,000/- with interest
at 6% per annum from the date of petition
till realization.
v. Respondent-Corporation is directed to
deposit the entire compensation amount
within eight weeks from the date of receipt
of copy of this judgment.
- 14 -
NC: 2024:KHC-K:5261-DB
Office is directed to transmit the Trial Court records to
the Tribunal forthwith.
The amount in deposit be transmitted to the Tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
NB
