Karnataka High Court
Mahadevappa S/O Nandappa Since ... vs Sharanappa And Anr on 4 March, 2024
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
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MFA No. 200634 of 2020
C/W MFA.CROB No. 200070 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO. 200634 OF 2020 (MV-D)
C/W
MFA CROSS OBJ NO. 200070 OF 2021
M.F.A. NO. 200634 OF 2020
BETWEEN:
THE DIVISIONAL CONTROLLER,
NEKRTC, BUS DEPOT,
YADIGR, NOW REPRESENTED BY ITS
CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICES,
SARIGE SADANA, KALABURAGI-585102.
...APPELLANT
Digitally signed by
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA
AND:
1. SAROJA W/O LATE MAHADEVAPPA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
2. SHIVAKUMAR S/O LATE MAHADEVAPPA,
AGE: 29 YEARS, OCC: NIL,
3. REKHA D/O LATE MAHADEVAPPA,
AGE: 27 YEARS, OCC: NIL,
4. SEEMA D/O LATE MAHADEVAPPA,
AGE: 24 YEARS, OCC: STUDENT,
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MFA No. 200634 of 2020
C/W MFA.CROB No. 200070 of 2021
5. ANIL KUMAR S/O LATE MAHADEVAPPA,
AGE: 22 YEARS, OCC: STUDENT,
ALL ARE R/O H.NO.3/2/80,
LAXMI NAGAR, GURUMITKAL,
TQ & DIST: YADGIR-585214.
6. SHARANAPPA S/O ASHAPPA BOIN,
AGE: 48, OCC: DRIVER OF N.E.K.R.T.C BUS
BEARING NO.KA-32/F-1059,
R/O DRIVER BADGE NO.21412, MUDHOL,
NOW AT SEDAM BUS DEPOT, TQ: SEDAM,
DIST: KALABURAGI-585222.
...RESPONDENTS
(BY SRI. VEERANAGOUDA MALIPATIL, ADV FOR R1 TO R5;
R6 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE IMPUGNED JUDGMENT AND AWARD IN
M.V.C.NO.189/2017, DATED: 18.11.2019, BY THE SENIOR
CIVIL JUDGE & M.A.CT-II, AT YADGIR, IN THE INTEREST OF
JUSTICE AND EQUITY.
MFA CROSS OBJ NO. 200070 OF 2021
BETWEEN:
MAHADEVAPPA S/O NANDAPPA
SINCE DECEASED BY HIS LRS.,
1. SAROJA W/O LATE MAHADEVAPPA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
2. SHIVAKUMAR S/O LATE MAHADEVAPPA,
AGE: 30 YEARS, OCC: NIL,
3. REKHA D/O LATE MAHADEVAPPA,
AGE: 28 YEARS, OCC: NIL,
4. SEEMA D/O LATE MAHADEVAPPA,
AGE: 25 YEARS, OCC: STUDENT,
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MFA No. 200634 of 2020
C/W MFA.CROB No. 200070 of 2021
5. ANIL KUMAR S/O LATE MAHADEVAPPA,
AGE: 23 YEARS, OCC: STUDENT,
ALL ARE R/O H.NO.3/2/80,
LAXMI NAGAR, GURUMITKAL,
TQ & DIST: YADGIR-585214.
...CROSS OBJECTORS
(BY SRI. VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
1. SHARANAPPA S/O ASHAPPA BOIN,
AGE: 49, OCC: DRIVER OF N.E.K.R.T.C BUS
BEARING NO.KA-32/F-1059,
R/O DRIVER BADGE NO.21412, MUDHOL,
NOW AT SEDAM BUS DEPOT, TQ: SEDAM,
DIST: KALABURAGI-585222.
2. THE DIVISIONAL CONTROLLER,
NEKRTC, BUS DEPOT,
YADIGR-585202
...RESPONDENTS
(BY SMT. SANGEETA BHADRASHETTY, ADV FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA CORSS OBJECTION IS FILED UNDER ORDER 41
RULE 22 OF CPC, PRAYING TO ALLOW THIS CROSS APPEAL,
THE JUDGMENT AND AWARD DATED 18.11.2019 IN MVC
NO.189/2017 PASSED BY THE SENIOR CIVIL JUDGE AND
MACT-II AT YADGIR, MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
ADMISSION, THIS DAY, K V ARAVIND J., DELIVERED THE
FOLLOWING:
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MFA No. 200634 of 2020
C/W MFA.CROB No. 200070 of 2021
JUDGMENT
Though these matters are listed for admission, with
the consent of both the learned counsel heard together for
final disposal.
2. The appeal and the cross objection arise out of
the judgment and award dated 18.11.2019 passed in MVC
No.189/2017 by the Senior Civil Judge & MACT-II, Yadgir
(for short, 'the Tribunal'). The appeal by the NEKRTC (for
short, 'the Corporation') challenging the liability and the
quantum. The cross objection by the claimants seeking
enhancement of compensation.
3. The claimants filed petition under Section 166
of the Motor Vehicles Act, 1988 (for short, 'the Act')
seeking compensation for accident occurred on
16.07.2016 involving motorcycle bearing Reg.No.KA-33/H-
7333 and Corporation bus bearing Reg.No.KA-32/F-1059.
It is stated that due to the accident, deceased-
Mahadevappa sustained grievous injuries and admitted to
KIMS Hospital, Hyderabad and succumbed to injuries on
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04.03.2018. It is stated that the deceased was Head
Master at HPS, Gajarkot and drawing salary of Rs.34,654/-
4. Respondent No.2/Corporation appeared through
the counsel and filed objections denying age, avocation
and income of the deceased. It is contended that the
deceased was not holding valid and effective driving
licence. Thus, denying the liability prays to dismiss the
claim petition.
5. On the basis of the pleadings, the Tribunal has
framed the following issues:
1. Whether the petitioner proves that on
16.07.2016 at about 8.30 p.m. he was
proceeding on Motor Cycle bearing registration
No.KA33/H-7333 along with one Sadanand
from Itkal village to Gurumitkal at that time
the driver of NEKSRTC Bus bearing registration
No. KA-32/F-1059 came from opposite
direction with high speed, rash and negligent
manner and dashed to said Motor Cycle due to
which he fell down and sustained grievous
injuries in the accident?
2. Whether the petitioners are entitled to the
compensation? If so, at what rate and against
whom?
3. What order or award?
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6. The claim petition was filed by Mahadevappa
and after his death, his wife and children being legal
representatives have come on record. The wife of the
deceased-Mahadevappa examined herself as PW.1 and got
marked Exs.P1 to P24. Respondent No.1 examined RW.1
and no documents are marked.
7. The Tribunal after examination of the material
evidence on record, held that the accident resulting death
of deceased-Mahadevappa was due to the rash and
negligent driving of the driver of the offending bus. The
Tribunal by considering the income of the deceased at
Rs.34,654/- per month, deducted 1/4th towards his
personal expenses, applied multiplier '11', considering the
age as 51 years and awarded compensation of
Rs.39,04,000/- with interest at 6% per annum.
8. Heard Smt. Sangeeta Bhadrashetty, learned
counsel for the Corporation and Sri Veeranagouda
Malipatil, learned counsel for the claimants and perused
the records.
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9. The learned counsel for the Corporation submits
that the charge sheet has been filed by the police after
detailed investigation of the accident against the
motorcycle also. The motorcycle has contributed
negligence to the accident. The Tribunal committed an
error in fastening entire liability on the Corporation. It is
further submitted that the deceased was not possessing
effective driving licence to ride the motorcycle, as a
consequence not entitled to compensation. It is further
submitted that the accident occurred due to rash and
negligent riding of the motorcycle. The rider of the
motorcycle was riding the motorcycle in a zig-zag manner
due to which the accident occurred. It is submitted that
the Tribunal while considering the income of the deceased,
has not deducted towards income tax liability.
10. The learned counsel for the claimants submits
that the income considered by the Tribunal is on the basis
of the material evidence on record. The Tribunal ought to
have awarded compensation towards future prospects as
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per the decision of the Hon'ble Supreme Court in the case
of National Insurance Co. Ltd., Vs. Pranay Sethi,
(2017) 16 SCC 680. Further submits that as per the
decision of the Hon'ble Supreme Court in the case of
Magma General Insurance Company Limited vs.
Nanu Ram and others, (2018) 18 SCC 130 the
claimants being wife and children are entitled for
compensation under the head loss of consortium at
Rs.40,000/- each. Thus, prays to re-assess the
compensation.
11. Having heard the learned counsel for the
parties, on perusal of the appeal papers and the records,
the points that would arise for consideration are -
1. Whether the Tribunal justified in holding that
the accident occurred due to rash and
negligent driving of NEKRTC bus?
2. Whether the compensation awarded by the
Tribunal needs re-consideration?
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12. Our answer to the above points is in the
affirmative for the following reasons:
13. It is the specific case of the claimants that the
accident occurred due to rash and negligent driving of the
bus bearing Reg.No.KA-32/F-1059. The spot sketch as per
Ex.P3, the two wheeler was riding from Sedam main road
towards Gurumitkal - Hyderabad road. The offending bus
was moving from Gurumitkal - Hyderabad road and has
taken left turn towards Sedam main road. The width of the
road is 20 ft. As per the sketch, the bus has taken left
turn, while taking left turn has moved extreme right,
whereas the motorcycle was coming from Sedam main
road on the extreme left. As per the sketch it is clear that
the driver of the bus has gone to the extreme right and
dashed the motorcycle. Further, as per the sketch the bus
has dragged the deceased for nearly 80ft and stopped at
110ft from the place of impact. When the bus has to take
left turn, it is expected the bus should move slowly.
Considering the distance at which it has dragged the
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deceased to a distance of 80ft and stopped at 110ft, it is
clear that the bus has taken left turn in a high speed.
When the bus has taken turn towards left in high speed in
a road having width of 20ft it is clear that the bus would
be on the extreme right and moving in a high speed,
which is clear from Ex.P3. Further, the charge sheet has
been filed against the driver of the bus.
14. The contention of the learned counsel for the
Corporation that charge sheet has been filed against the
rider of the motorcycle, hence, he has contributed to the
accident is not acceptable. The charge sheet on the
motorcycle is for not possessing license and insurance
policy and violation under the Act. Charge sheet does not
speak of negligence on the part of the rider of motorcycle.
In the circumstances, the Tribunal is justified in holding
that the accident occurred due to rash and negligent
driving of the offending bus and fastening the liability on
the Corporation. The contention of the learned counsel
that the rider of the motorcycle was not possessing the
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effective driving licence and hence, the Corporation is not
liable to pay the compensation is not correct.
15. The learned counsel for the claimants has
placed reliance on the judgment of the Hon'ble Supreme
Court in the case of Sudhir Kumar Rana vs Surinder
Singh and Othes reported in (2008) 12 SCC 436 to
contend that even in the absence of driving licence, the
claimants are entitled for compensation. The charge sheet
filed by the police clearly indicates that the accident
occurred due to rash and negligent driving of the offending
bus. The charge sheet does not speak on the negligence
contributed by the two wheeler to the accident. No
contrary evidence is placed by the Corporation to indicate
that the two wheeler contributed to the accident. In the
absence of any material on record to prove that the
accident occurred due to rash and negligent riding of the
two wheeler, merely the rider of the motorcycle was not
possessing the driving licence cannot be considered to
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hold that the rider of the two wheeler is guilt of the
contributory negligence.
16. The judgment of the Hon'ble Supreme Court in
the case of Sudhir Kumar Rana (supra) has held that
mere riding vehicle without licence would not lead to
negligence as regard the accident. Unless the vehicle
driven by its driver contributed to the accident, having no
licence cannot be considered for contributory negligence.
In the present case negligence of two wheeler to the
accident is not proved.
17. The Tribunal while assessing the income of the
deceased considered the salary at Rs.34,654/- on the
basis of the service register and salary certificate. In the
absence of contrary evidence placed by the Corporation,
service register and salary certificate at Ex.P14 is
considered as basis for assessing the income of the
deceased. It is the contention of the Corporation that
while considering the income no deduction is made
towards income tax liability. The income considered
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without deducting income tax is on the higher side. There
is no dispute that while considering the income of the
deceased, it is after deducting tax.
18. In view of the undisputed position of law the
income considered by the Tribunal ought to have provided
deduction towards income tax. If we considered income of
Rs.34,654/- per month, the income per annum would
Rs.4,15,848/-. The income after tax would be as under:
Monthly income Rs.34,654/-
Total Salary per annum Rs.4,15,848/-
Upto Rs.2,50,000/- Income Tax Nil
Professional Tax Rs.2,400/-
Tax on (Rs.4,15,848/- - Rs.2,52,400/-)
= Rs.1,63,448/- ( x 5%) (-)Rs.8,173/-
Rebate (-) Rs.5,000/-
Total Tax liability Rs.3,173/-
Total Income per annum Rs.4,12,675/-
Per Month Income Rs.34,389/-
Rounded off to Rs.34,390/-
19. After deduction of tax towards income tax
minus professional tax, the total income per month would
be Rs.34,390/-. The age of the deceased and applicable
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multiplier is not dispute in this appeal. The Tribunal has
rightly deducted 1/4th towards personal expenses.
However, the claimants are entitled for future prospects as
per Pranay Sethi's case (supra). The deceased was aged
51 years and was in permanent job as per Pranay Sethi's
case (supra), the income is to be further added by 15%.
Thus, the total compensation towards loss of dependency
is re-assessed as under:
Monthly income - Rs.34,390/-
Future prospects at 15% - Rs.5,158/-
Income with future prospects - Rs.39,548/-
Deduction towards personal
Expenses (1/4th) - Rs.9,887/-
Monthly income with addition
of future prospects and - Rs.29,661/-
deduction towards personal
expenses
Annual income - Rs.3,55,932/-
Age - 51 years
Multiplier - 11
Loss of dependency - Rs.39,15,252/-
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20. The Tribunal committed an error considering in
a sum of Rs.50,000/- towards loss of consortium. As per
Magma's case (supra) the claimants being the wife and
children are entitled for Rs.40,000/- each towards
spousal and parental consortium.
21. As per Pranay Sethi's case (supra) the
claimants are entitled for Rs.15,000/- towards loss of
estate and Rs.15,000/- towards funeral expenses.
22. Thus, the total compensation is re-assessed as
under:
Amount Amount
Sl.
Different Heads awarded by the awarded by
No.
Tribunal this Court
1 Loss of Dependency Rs.34,21,836/- Rs.39,15,252/-
2 Medical Expenses Rs.03,57,637/- Rs.3,57,637/-
3 Loss of love and affection Rs.50,000/- ---
4 Loss of Consortium Rs.50,000/- Rs.80,000/-
5 Funeral Expenses Rs.25,000/- Rs.15,000/-
6. Loss of estate ---- Rs.15,000/-
Total Rs.39,04,473/- Rs.43,82,889/-
Rounded off to Rs.39,04,000/- Rs.43,82,900/-
Enhancement Rs.4,78,900/-
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23. The claimants are entitled for a sum of
Rs.43,82,900/- against the sum of Rs.39,04,000/- as
awarded by the Tribunal.
24. Hence, the following:
ORDER
(i) The appeal and the cross objection are
allowed in part.
(ii) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total
compensation of Rs.43,82,900/- as against
Rs.39,04,000/- awarded by the Tribunal.
(iii) The enhanced compensation will bear
interest at the rate of 6% per annum from
the date of claim petition till date of
realization.
(iv) The Insurer shall deposit the compensation
with accrued interest before the Tribunal
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within a period of eight weeks from the
date of receipt of a certified copy of this
order.
(v) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
(vi) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
Sd/-
JUDGE
Sd/-
JUDGE
sdu
CT: CS
