Karnataka High Court
Siddvva W/O Kallolleppa Neelar vs The Divisional Controller N.W.K.R.T.C on 10 June, 2024
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NC: 2024:KHC-D:7769
MFA No. 25661 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 25661 OF 2011
(MV-D)
BETWEEN:
1. SIDDVVA W/O. KALLOLLEPPA NEELAR,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KAKANUR, TALUK: BADAMI,
NOW RESIDING AT GADDANAKERI,
TALUK: BAGALKOT.
2. MANJUNATH S/O. KALLOLLEPPA NEELAR,
AGE: 17 YEARS,
SINCE MINOR BY HIS MGM
APPELANT NO.1 SIDDAVVA.
3. HANAMAPPA S/O. YALLAPPA NEELAR,
AGE: 57 YEARS, OCC: NIL,
R/O: KAKANUR, TALUK: BADAMI,
NOW RESIDING AT GADDANAKERI,
TALUK: BAGALKOT.
Digitally signed
by GIRIJA A
4. KASHAVVA W/O. HANAMAPPA NEELAR,
BYAHATTI AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O: KAKANUR, TALUK: BADAMI,
KARNATAKA
NOW RESIDING AT GADDANAKERI,
TALUK: BAGALKOT.
...APPELLANTS
(BY SRI. B.C. JNANAYYASWAMY, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER N.W.K.R.T.C,
BAGALKOT, DIVISION,
BAGALKOT, OWNER OF BUS BEARING
NO.KA-25/ F-2094.
...RESPONDENT
(BY SRI. I.C. PATIL, ADVOCATE)
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MFA No. 25661 of 2011
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
173 OF MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL BY
SHIFTING ENTIR LIABILITY OF PAYMENT OF COMPENSATION ON THE
RESPONDENT AND MODIFY THE JUDGMENT AND AWARD DATED 27-
06-2011 PASSED BY THE COURT OF MEMBER M.A.C.T. BAGALKOT IN
MVC NO.352/2009 BY ENHANCING THE COMPENSATION AMOUNT
AND IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioners have challenged the
judgment and award dated 27.06.2011 passed by the
MACT-III, Bagalkote in MVC No.352/2009.
2. For the sake of convenience, the rank of the
parties will be referred to as per their status before the
Tribunal.
3. The brief facts of the case are, one Kallolleppa
who is the husband of the first petitioner, father of the
second petitioner and son of the petitioner Nos.3 and 4 (in
short, 'deceased'), on 13.03.2008, while riding his
motorcycle bearing registration No.KA-29/L-5005 from
Neeralakeri towards Kakanur on Kulageri-Ramadurg road,
hit by the KSRTC bus bearing registration No.KA-25/F-
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2094 from the opposite direction at 2.45 p.m. killing him
at the spot. The petitioners have approached the Tribunal
as dependants claiming compensation of Rs.12,00,000/-
from the respondent. The claim was opposed by the
insurance company contending that the complete
negligence is on the part of the deceased himself. The
Tribunal after holding enquiry and after hearing both the
parties, allowed the claim petition assessing the
compensation at Rs.4,52,000/- and also attributed 50%
contributory negligence to the deceased and directed
KSRTC to pay 50% of the compensation with 6% interest.
Aggrieved by the same, the petitioners have filed this
appeal on various grounds.
4. Heard Sri B.C. Jnanayyaswami, learned counsel
for petitioners and Sri I.C. Patil, learned counsel for
respondent-KSRTC.
5. It is the contention of the learned counsel for
the petitioners that the deceased was an agriculturist,
earning more than Rs.6,000/- p.m. and he was aged 35
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years. The Tribunal has taken lesser income of Rs.3,000/-
p.m. There is no negligence on the part of the deceased,
on the other hand, complete negligence is on the driver of
KSRTC bus and the contributory negligence is attributed
against the deceased is erroneous and sought for
enhancement of compensation and requested to attribute
complete negligence against the driver of the KSRTC bus.
6. Per contra, learned counsel for KSRTC has
contended that the accident took place in a junction. The
deceased without observing the incoming traffic, entered
the road contributing complete negligence for the accident.
For these reasons, the Investigating Officer has also
charge sheeted the deceased as the accused No.2 along
with the driver of the bus of the KSRTC bus. The Tribunal
has rightly considered the evidence on record and
attributed 50% negligence though 100% negligence is
against the deceased. There is no proof of income placed
before the Tribunal and the Tribunal has rightly assessed
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the notional income at Rs.3,000/- p.m. and he supported
the impugned judgment.
7. I gave anxious consideration to the arguments
addressed by both the sides and perused the records.
8. There is no dispute with regard to the accident
occurred on 13.03.2008, on Kulageri-Ramadurg road
involving the motorcycle ridden by the deceased and
KSRTC bus in which the deceased succumbed to death at
the spot. The police investigating papers such as FIR,
charge sheet, postmortem report, MV report, inquest
panchanama at Exs.P-1 to P-7 clearly explain that the
equal contributory negligence is on the part of the
deceased as well as on the driver of the KSRTC bus. On
perusal of mahazar it is pertinent to note that the accident
took place in a circle where the deceased all of a sudden
entered the circle and at the same time KSRTC bus
resulting in death of the deceased.
9. The Tribunal correctly attributed the
contributory negligence equally by the driver of the bus as
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well as the deceased. Hence, there is no force in the
argument of the learned counsel for the petitioners in this
regard.
10. The material on record point out that the
deceased was aged 35 years. The petitioners have
produced Exs.P-8 and P-9, RTC extracts pertains to
Sy.No.83/1B and Sy.No.11/5 to show that the deceased
was doing agriculture. Mere production of RTC extract is
not suffice to assess the income of the deceased. Hence,
the totality of the case has to be considered that too the
deceased has left behind his wife, minor son and aged
parents. The accident is of the year 2008. Taking into
circumstances the notional income of the deceased is
taken at Rs.4,250/- p.m. for the relevant year.
11. It is pertinent to note that though the claim
petition was filed under Section 163-A of Motor Vehicle
Act, 1988 (for short, 'MV Act'), the Tribunal treated the
said claim petition under Section 166 of MV Act and
determined the compensation as the provision is
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mistakenly mentioned by the counsel appearing for the
petitioners. This aspect has not been challenged by the
KSRTC. On perusal of allegation made in claim petition, it
is clear that claim was under Section 106 of MV Act and
not under Section 163A of MV Act. The Tribunal is right in
considering the claim as one filed under Section 166 of MV
Act. Therefore, the principles has to be applied which is
applicable Section 166 of MV Act.
12. In a case of this nature, the award of
compensation has been determined following the
guidelines issued by the Hon'ble Supreme Court in the
case of National Insurance Company Limited Vs.
Pranay Sethi and others1 and in the case of Sarla
Verma and others Vs. Delhi Transport Corporation
Limited and another2. As the deceased was aged 35
years, future prospects of 40% has to be added to the
income of the deceased and as there are 4 dependants,
1/4th has to be deducted towards personal expenses. The
(2017) 16 SCC 680
(2009) 6 SCC 121
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applicable multiplier for the age of 35 years is 16.
Applying these factors, loss of dependency is calculated as
under:
Rs.4,250 - 1700 (40% of Rs.4,250) = 5,950/-
Rs.5,950 - 1,487 (25% of Rs.5,950) = 4,463/-
Rs.4,463 x 12 x 16 = 8,56,896/-
13. Under the conventional heads, a sum of
Rs.5,000/- is awarded to the wife towards loss of
consortium, a sum of Rs.5,000/- each is awarded to the
son and the parents towards loss of love and affection and
a sum of Rs.5,000/- is awarded towards loss of estate and
a sum of Rs.5,000/- is awarded towards funeral expenses.
Thereby the total compensation of Rs.8,86,896/- is
assessed. Out of which, the petitioners are entitled for
50% i.e., Rs.4,43,448/-. This is the just compensation the
petitioners are entitled in the facts and circumstances of
the case. Accordingly, the appeal merits consideration. In
the result, the following:
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ORDER
(i) Appeal is allowed in part.
(ii) The judgment and award dated 27.06.2011
passed by the M.A.C.T.-III, Bagalkot, in M.V.C.
No.352/2009 is modified.
(iii) The petitioners are entitled for a total
compensation of Rs.4,43,448/- with interest at
6% per annum from the date of petition till the
date of realization.
(iv) The respondent-KSRTC is directed to deposit
the compensation amount within six weeks from
the date of receipt of a copy of this judgment
minus the amount already deposited.
(v) Rest of the award passed by the Tribunal is kept
intact.
Sd/-
JUDGE
NAA
