Karnataka High Court
Basappa S/O Oshanmukappa Shimpiger ... vs The Managing Director, Nwksrtc on 6 June, 2024
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NC: 2024:KHC-D:7568
MFA No. 101739 of 2020
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 101739 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101740 OF 2020
MISCELLANEOUS FIRST APPEAL NO. 100849 OF 2021 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 100385 OF 2022 (MV-D)
IN MFA NO.101739/2020
BETWEEN:
1. THE MANAGING DIRECTOR,
NWKSRTC GOKUL ROAD, HUBBALLI-580030.
2. THE SELF INSURANCE FUND,
NWKSRTC GOKUL ROAD, HUBBALLI-580030.
APPELLANT NOS.1 AND 2 ARE
REPRESENTED BY CHIEF LAW OFFICER
NWKSRTC HUBBALLI.
...APPELLANTS
Digitally signed (BY SRI S.S. KOLIWAD, ADVOCATE)
by MANJANNA
E
Location: HIGH
COURT OF AND:
KARNATAKA
1. BASAPPA S/O. SHANMUKAPPA
SHIMPIGER @ CHIMPAGER
AGE: 51 YEARS, OCC: NIL,
RESIDENT OF BOGAR, TALUK: KALAGATAGI,
DISTRICT: DHARWAD-581 204.
2. SMT. SHANKREVVA
W/O. BASAPPA SHIMPIGER @ CHIMPAGER,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF BOGUR, TALUK: KALAGATAGI,
DISTRICT: DHARWAD-581 204.
3. KUMAR PRASHANT S/O. BASAPPA
SHIMPIGER @ CHIMPAGER,
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NC: 2024:KHC-D:7568
MFA No. 101739 of 2020
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
AGE: 21 YEARS, OCC. STUDENT,
RESIDENT OF BOGUR, TALUK: KALAGATAGI
DISTRICT: DHARWAD-581 204.
...RESPONDENTS
(BY SRI B.S. SANGATI, ADVOCATE FOR R1 TO R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL
FOR RECORDS FROM THE BEFORE THE SENIOR CIVIL JUDGE AND
JMFC KALAGATAGI M.V.C NO.770/2017, DATED 30.11.2019 AND
SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE SENIOR
CIVIL JUDGE, JMFC, KALAGATAGI, AND DISMISS THE CLAIM
PETITION BY ALLOWING THIS APPEAL AND ETC.
IN MFA NO.101740/2020
BETWEEN:
1. THE MANAGING DIRECTOR,
NWKSRTC GOKUL ROAD HUBBALLI-580030.
2. THE SELF INSURANCE FUND,
NWKSRTC, GOKUL ROAD,
HUBBALLI-580030.
APPELLANT NOS.1 AND 2 ARE
REPRESENTED BY CHIEF LAW OFFICER
NWKSRTC HUBBALLI.
...APPELLANTS
(BY SRI S.S. KOLIWAD, ADVOCATE)
AND:
NIJAGUNI S/O. MALLAPPA GOPALI,
AGE: 25 YEARS, OCC: BAR BUILDER AND CENTRING
RESIDENT OF BOGAR, TALUK: KALAGATAGI,
DISTRICT: DHARWAD-581204.
...RESPONDENTS
(BY SRI B. S. SANGATI, ADVOCATE)
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NC: 2024:KHC-D:7568
MFA No. 101739 of 2020
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL
FOR RECORDS FROM THE BEFORE THE SENIOR CIVIL JUDGE AND
JMFC KALAGATAGI M.V.C NO.19/2018 DATED 30.11.2019 AND SET
ASIDE THE JUDGMENT AND PASSED BY THE SENIOR CIVIL JUDGE,
JMFC, KALAGATAGI, AND DISMISS THE CLAIM PETITION BY
ALLOWING THIS APPEAL AND ETC.
IN MFA NO.100849/2021
BETWEEN:
NIJAGUNI S/O. MALLAPPA GOPALI,
AGE: 26 YEARS, OCC: BAR BUILDER AND CENTRING,
RESIDENT OF BOGUR, TALUK: KALAGATAGI,
DISTRICT: DHARWAD-581 204.
...APPELLANT
(BY SRI B. S. SANGATI, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
NWKSRTC GOKUL ROAD, HUBBALLI-580009.
2. THE SELF INSURANCE FUND,
NWKSRTC, GOKUL ROAD, HUBBALLI-580009.
...RESPONDENTS
(BY SRI S. S. KOLIWAD, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND
AWARD DATED 30.11.2019 PASSED IN MVC NO.19/2018 BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC, KALAGATAGI IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:7568
MFA No. 101739 of 2020
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
IN MFA NO.100385/2022
BETWEEN:
1. BASAPPA S/O. SHANMUKAPPA
SHIMPIGER @ CHIMPAGER,
AGE: 52 YEARS, OCC: NIL,
RESIDENT OF BOGUR, TALUK: KALAGHATAGI,
DISTRICT: DHARWAD-581204.
2. SMT. SHANKREVVA
W/O. BASAPPA SHIMPIGER @ CHIMPAGER,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF BOGUR, TALUK: KALAGHATAGI,
DISTRICT: DHARWAD-581204.
3. KUMAR PRASHANT S/O BASAPPA
SHIMPIGER @ CHIMPAGER,
AGE: 22 YEARS, OCC: STUDENT,
RESIDENT OF BOGUR, TALUK: KALAGHATAGI,
DISTRICT: DHARWAD-581204.
...APPELLANTS
(BY SRI B.S. SANGATI, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
NWKSRTC, GOKUL ROAD, HUBBALLI-580009.
2. THE SELF INSURANCE FUND,
NWKSRTC, GOKUL ROAD, HUBBALLI-580009.
...RESPONDENTS
(BY SRI S.S. KOLIWAD, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND
AWARD DATED 30.11.2019 PASSED IN MVC NO.770/2017 BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC, KALAGATAGI IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 101739 of 2020
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
JUDGMENT
Sri. S.S. Koliwad, learned counsel accepts notice for
NWKSRTC in MFA No.100849/2021 and MFA No.100385/2022.
Heard learned counsel on both sides in respective appeals.
With the consent of learned counsel on both sides, the
matters are taken up for final disposal.
MFA No.101739/2020 and MFA No.101740/2020 are filed
by the appellant-NWKSRTC against the claimants for reduction
of compensation.
MFA No.100849/2021 and MFA No.100385/2022 are filed
by the claimants seeking enhancement of compensation.
For the sake of convenience, the parties are referred to
as they are referred to in the claim petitions before the
Tribunal.
Heard all the four appeals arising out of common judgment
passed by learned Senior Civil Judge and JMFC, Kalaghatagi in
MVC No.770/2017 clubbed with MVC.No.19/2018 dated
30.11.2019.
NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
2. The case of the claimants before the tribunal is as
under:-
On 01.12.2017, at about 12.30 p.m., the claimant in MVC
No.19/2018 was riding the motor cycle bearing registration
No.KA 25/E-3029 and deceased Gurunath Shimpiger was the
pillion rider and when they were going slowly on the left side of
the road on Dharwad-Kalaghatagi near Hulikatti village, the
driver of NWKSRTC bus bearing registration No.KA-25/F-2653
came from Tumarikoppa towards Kalagatagi in a high speed in
rash and negligent manner and dashed to the motor cycle of the
claimant. Due to the said impact, the pillion rider Gurunath
Shimpiger fell down on the ground, sustained severe injuries and
succumbed to the injuries on the way to KIMS hospital, Hubballi.
The rider of the motor cycle-claimant also sustained grievous
injuries and he was shifted to KIMS hospital, Hubballi, where he
took treatment and also at Balaji Hospital, Hubballi. This led to
registration of FIR and investigation.
3. In this regard, the claimants in MFA No.100385/20222
(MVC No.770/2017) filed a claim petition under Section 166 of
the M.V. Act on the ground that claimant No.1 is father, claimant
No.2 is the mother and claimant No.3 is the younger brother of
NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
deceased Gurunath Shimpiger. At the time of the accident, the
age of the deceased was 25 years and he was doing agricultural
work and milk vending business and his monthly income was
Rs.20,000/- per month and contending that they have lost the
sole bread earner in the family, they have sought for
enhancement of compensation.
4. The claimant in MFA No.100849/2021 (MVC
No.19/2018) the rider of the motor cycle has taken up the
contention that he sustained in all five injuries and among them,
three injuries are grievous and two are simple injuries and the
tribunal has not considered the nature of the injuries; the
tribunal has not granted fair compensation under the head 'pain
and suffering', 'loss of income during laid up period', 'loss of
amenities', 'Food, diet, attendance and conveyance charges' and
hence, prayed for enhancement of compensation by allowing the
appeal.
5. Sri.S.S. Koliwad, learned counsel for the appellant-
NWKSRTC in MFA No.101739/2020 and MFA No.101740/2020
contended that the rider-claimant and deceased-pillion rider
came in rash and negligent manner in the motor cycle in the
NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
middle of the road and they have contributed negligence to the
accident. The rider of the motor cycle bearing registration
No.KA-25/E-3029 was not holding the driving licence as on the
date of the accident. Therefore, the Corporation is not liable to
pay the compensation to the claimant and deceased. Hence, he
prayed to dismiss the appeals filed by the claimants and allow
the appeals filed by the Corporation.
6. As there is no dispute regarding the death of deceased
Gurunath Shimpiger, who was a pillion rider, who died in the
road traffic accident that took place on 01.12.2017 at 12.30
noon and the injuries sustained by the claimant due to rash and
negligent driving by NWKSRTC bus bearing registration No.KA-
25/F-2653 by its driver and liability on respondent Nos.1 and 2,
the following points would arise for consideration of this Court
which are as under:-
1. Whether the Corporation proved that the rider
of the motor cycle contributed negligence and
hence the Corporation is not liable to pay any
compensation?
NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
2. Whether the quantum of compensation awarded
by the tribunal is just and reasonable or does it
call for enhancement?
7. From the perusal of contents of Ex-P1-FIR, Ex-P2 spot
panchanama and Ex-P4 charge sheet, the first informant made
allegation against the driver of the bus. As per column No.17 of
the charge sheet, the Investigating Officer has opined that the
accident in question was due to rash and negligent driving by
the driver of the bus and not because of rider of the motor
cycle. Therefore, there is no merit in the contention of the
Corporation.
8. After hearing learned counsel appearing for the parties
and perusing the judgment and award of the tribunal, I am of
the view that the compensation awarded by the tribunal is not
just and reasonable, it is on the lower side and hence, it is
required to be enhanced.
MFA No.100385/2022(MVC No.770/2017)
9. Claimants in MFA No.100385/2022 (death case) in
order to prove their case, examined first claimant-father of the
deceased as PW-2 and one Nijaguni-claimant in MFA
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
No.100849/2021 as PW.1 and got exhibited twelve documents
viz., Ex-P1 to P12.
10. The very fact that the pillion rider deceased-
Gurunath Shimpiger @ Chimpager was proceeding on
Dharwad-Kalagatagi road near Hulikatti village and the driver of
the NWKSRTC bus came in rash and negligent manner and
dashed against the motor cycle is not in dispute. Hence, the
claimant sustained injuries and deceased Gurunath Shimpiger
@ Chimpager succumbed to the injuries in the hospital.
11. The claimants of deceased Gurunath Shimpiger @
Chimpager have stated that prior to death of the deceased, his
monthly income was Rs.20,000/- per month. Except the oral
evidence of PWs.1 and 2, the claimants have not produced any
documentary proof to prove the income of the deceased. The
tribunal considering the notional income at Rs.6,000/- per
month and deducting 50% towards his personal expenses and
applying multiplier at '18', granted compensation of
Rs.6,48,000/- towards 'loss of dependency'.
12. In the absence of any evidence, as per Lok Adalat
chart, for the accident of the year 2017, the notional income
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NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
could be taken at Rs.10,250/- per month. Deceased Gurunath
Shimpiger @ Chimpager died leaving behind his father, mother
and younger brother and therefore, the deceased being a
bachelor, the appropriate deduction towards personal expenses
would be 50% as per the law declared by the Hon'ble Supreme
Court in the case of Smt. Sarla Verma and Others vs. Delhi
Transport Corporation and another reported in AIR 2009
SC 3104.
13. As per the law laid down by the Hon'ble Apex Court
in the case of National Insurance Company Limited vs.
Pranay Sethi reported in (2017) 16 SCC 680, 40% of the
income is to be added towards 'loss of future prospectus in life'.
The deceased was aged 25 years at the time of the accident.
Therefore, the appropriate multiplier applicable as per the
judgment of the Hon'ble Supreme Court in the case of Smt.
Sarla Verma and Others vs. Delhi Transport Corporation
and another reported in AIR 2009 SC 3104 is '18'.
Therefore, the compensation under the head 'loss of
dependency' along with 'loss of future prospectus in life' is
recalculated and quantified as follows:-
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NC: 2024:KHC-D:7568
C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
Rs. 10,250/- is assessed as notional income, having
regard to the chart prepared by the Karnataka State Legal
Service Authority, in the absence of proof of income. Thus, the
notional income of the deceased is taken at Rs.10,250/- instead
of Rs.6,000/- taken by the Tribunal. Thus 'loss of
dependency' works out to Rs.10,250 + 40% future
prospectus(Rs.4,100/-) = Rs.14,350/-. 50% towards
personal expenses is deducted from the total amount
which comes to Rs.14,350 - Rs.7,175/-( Rs.7,175/-)
Rs.7,175 x 12 x 18 =Rs.15,49,800/-
14. The tribunal has committed an error in not awarding
fair compensation under the head 'loss of consortium and
'loss of love and affection'. Therefore, as per the judgment
of the Hon'ble Apex Court in the case of Magma General
Insurance Company Ltd., vs. Nanu Ram Alias Chuhru
Ram and Others reported in (2018) 18 SCC 130 and
Pranay Sethi's case, three claimants are entitled to
Rs.48,000/- each under the head 'loss of consortium', with
20% escalation(10% once in three years). Accordingly,
Rs.1,44,000/-(Rs.48,000 x 3) is awarded under the head 'loss
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
of consortium' including 'loss of love and affection' as
against Rs.50,000/- awarded by the tribunal.
15. Further, a compensation of Rs.15,000/- each is
awarded under the head 'loss of estate and 'funeral and
transportation expenses', respectively with 20% escalation.
Therefore, a sum of Rs.36,000/-(Rs.18,000 x2) is awarded
towards 'loss of estate' and funeral and transportation
expenses'.
16. Thus, in all, the claimants/appellants are entitled for
compensation as under:-
HEADS Rs.
Loss of dependency 15,49,800
Loss of consortium 1,44,000
Loss of estate 18,000.00
Funeral and transportation expenses 18,000.00
TOTAL 17,29,800.00
Less: Compensation awarded by the Tribunal 7,28,000.00
Enhanced compensation 10,01,800.00
MFA No.100849/2021(MVC No.19/2018)
17. So far as claimant in MFA No.100849/2021, the
tribunal awarded a global compensation of Rs.3.00 lakhs
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
towards pain and suffering, medical expenses and other
miscellaneous expenses. The tribunal awarded a compensation
of Rs.2,87,736/- towards 'medical expenses'. Hence, it is
reasonable one. Thus no interference is called for in that
regard.
18. The tribunal has not awarded any compensation
towards 'pain and suffering'. As per the wound certificate-ExP6,
the claimant suffering the following injuries:-
1. Hemorrhage catina basifrontal region;
2. Diffusa cerebral oedema;
3. Fracture left paratumrical mandible;
4. Fracture right frontal sinus;
5. Fracture bilateral maxillary sinus.
As per Ex-P6-wound certificate, there are three fracture
and two simple injuries. For one grievous injury, as per settled
law, the claimant is entitled for a sum of Rs.40,000/- and for
additional fracture, the claimant is entitled for Rs.10,000/- and
towards simple injuries, the claimant is entitled for a sum of
Rs.5,000/- each. Therefore, the claimant is entitled for a
compensation of Rs.70,000/- under the head 'pain and
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
suffering'. Towards 'nourishment, conveyance and
attendant charges', the tribunal has not awarded any
compensation. Therefore, a sum of Rs.30,000/- is awarded
under the said head.
19. Towards 'loss of income during laid up period', the
tribunal has not awarded any compensation. As per the
material available on record, the claimant was aged 25 years
and the accident was of the year 2017. In the absence of any
proof of income, the income is assessed at Rs.10,250/-
notionally. Having regard to the chart prepared by Karnataka
State Legal Services Authority, the appropriate notional income
to be taken is Rs.10,250/- and considering the nature of the
injuries sustained by the claimant and nature of the injuries
suggest that he must have been under rest and treatment for a
period of three months. Therefore a sum of Rs.30,750/-
(Rs.10,250 x3) is awarded under the head 'loss of income
during laid up period'. The tribunal has not awarded any
compensation under the head 'loss of amenities'. Hence, a
sum of Rs.25,000/- is granted towards 'loss of amenities',
considering the nature of injuries sustained and period of
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
hospitalization. Thus the claimant is entitled for the following
compensation:-
HEADS Rs.
Pain and suffering 70,000.00
Medical expenses 2,87,736.00
Nourishment, conveyance 30,000.00
and attendant charges
Loss of income during laid 30,750.00
up period
Loss of amenities 25,000.00
TOTAL 4,43,486.00
Less: Compensation
3,00,000.00
awarded by the Tribunal
Enhanced compensation 1,43,486.00
Accordingly, I pass the following;
ORDER
1. MFA.No.101739/2020 and MFA.No.101740/2020,
filed by the Corporation-NWKSRTC are dismissed.
2. MFA No.100849/2021 and MFA No.100385/2022
are allowed-in-part.
3. The judgment and award dated 30.11.2019 passed
in MVC NO.770/2017 and MVC.19/2018 on the file
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
of the Senior Civil Judge and Judicial Magistrate
First Class, Kalagatagi is modified to the extent
stated herein above.
4. The claimants in MFA No.100849/2021(deceased
Gurunath Chimpiger-MVC No.770/2017) are
entitled for an additional enhanced compensation of
Rs.10,01,800/- with interest at 6% p.a. from the
date of claim petition till the date of realization.
However, the claimants are not entitled for interest
on the enhanced compensation on the delayed
period of 285 days in filing the appeal.
5. The claimant in MFA No.100849/2021(claimant-
Nijaguni -MVC No.19/2018) is entitled for an
additional enhanced compensation of Rs.1,43,486/-
with interest at 6% p.a. from the date of claim
petition till the date of realization.
6. The Corporation-NWKSRTC is directed to deposit
the additional compensation amounts with interest
within a period of eight weeks from the date of
receipt of a copy of this Judgment
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C/W MFA No. 101740 of 2020, MFA No.
100849 of 2021, MFA No. 100385 of 2022
7. On deposit, the tribunal is directed to disburse the
enhanced compensation in favour of the claimants
as per the apportionment made by it.
8. The amount deposited by the Corporation before
this Court, if any, be transmitted to the tribunal
within three weeks.
9. Draw the modified awards accordingly.
10. Registry to transmit a copy of this judgment to the
concerned tribunal, along with its records.
11. No order as to costs.
Sd/-
JUDGE
MN
