Karnataka High Court
The Divisional Controller vs Dyamavva W/O Laxman Pujar on 7 March, 2024
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MFA No.102233/2022 C/W MFA
No.102230/2019 MFA No.102231/2019,
MFA No.102802/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102233 OF 2022 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102230 OF 2019 (MV-D)
MISCELLANEOUS FIRST APPEAL NO. 102231 OF 2019 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 102802 OF 2022 (MV-I)
IN MFA NO.102233/2022:
1. SMT. DYAMAVVA W/O. LAXMAN PUJAR,
AGE: 30 YEARS, OCC: NIL.
2. KUMAR. GANESH S/O. LAXMAN PUJAR,
AGE: 10 YEARS, OCC: STUDENT.
3. KUMARI KAVYA D/O. LAXMAN PUJAR,
AGE: 8 YEARS, OCC: STUDENT.
4. SHRI. DILLEPPA S/O. DODDALAKMAPPA PUJAR,
AGE: 59 YEARS, OCC: NIL.
5. SMT. GANGAMMA W/O. DILLEPPA PUJAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
APPELLANT NO.2 & 3 ARE MINORS,
Digitally signed
by JAGADISH T R REPTD. BY APPELLANT NO.1)
Location: HIGH ALL ARE R/O. MEDLERI,
COURT OF
KARNATAKA TQ: RANEBENNUR, DIST: HAVERI,
NOW R/AT: GUTTAL,
TQ & DIST: HAVERI, PIN CODE-581108.
...APPELLANTS
(BY SRI. B. M. PATIL, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER,
NEKRTC, HOSAPET DIVISION,
HOSAPET, DIST: BALLARI-583201.
2. THE AUTHORIZED SIGNATORY,
SELF-INSURANCE NEKRTC LTD,
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DIVISIONAL OFFICE HOSAPET,
HOOVINAHADAGALI,
DT: BALLARI-583201.
3. SHRI. NAGARAJ S/O. BASAPPA GONER,
AGE: MAJOR, OCC: OWNER OF THE
MOTORCYCLE BEARING REG.NO.KA-27/H-6891,
R/O. MANAKUR, TQ: RANEBENNUR,
DT: HAVERI-581208.
...RESPONDENTS
(BY SRI. S. C. BHUTI, ADV. FOR R1 & R2,
NOTICE TO R3 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, ENHANCE THE
COMPENSATION BY MODIFYING JUDGMENT ENTIRE LIABILITY ON
THE RESPONDENT NO.1 & 2 IN M.V.C NO.185/2017 DATED 01-02-
2019 BY THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
MEMBER MACT, HAVERI IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.102230/2019:
BETWEEN:
1. THE DIVISIONAL CONTROLLER,
NEKRTC, HOSAPETE DIVISION,
HOSAPETE, DIST: BALLARI.
2. THE AUTHORIZED SIGNATORY,
SELF INSURANCE NEKRTC LTD,
DIVISIONAL OFFICE
HOSAPETE/HOOVINAHADAGALI,
DIST: BALLARI, BOTH APPELLANTS ARE
REPRESENTED BY CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. S. C. BHUTI, ADVOCATE)
AND:
1. DYAMAVVA W/O. LAXMAN PUJAR,
AGE: 27 YEARS, OCC:NIL.
2. GANESH S/O. LAXMAN PUJAR,
AGE: 7 YEARS, OCC: STUDENT.
3. KAVYA D/O. LAXMAN PUJAR,
AGE: 5 YEARS, OCC:NIL.
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RESPONDENT NO.2 AND 3 ARE MINORS,
R/BY. M/G MOTHER RESPONDENT NO.1
DYAMAVVA W/O. LAXMAN PUJAR.
4. DILLEPPA S/O. DODDALAKMAPPA PUJAR,
AGE: 56 YEARS, OCC: NIL.
5. GANGAMMA W/O. DILLEPPA PUJAR,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. MEDLERI, TALUKA: RANEBENNUR,
DIST: HAVERI, NOW R/AT: GUTTAL,
TQ & DIST: HAVERI-581211.
6. NAGARAJ S/O. BASAPPA GONER,
AGE: MAJOR, OCC: OWNER OF THE MOTOR
CYCLE BEARING REG.NO.KA-27/H-6891,
R/O. MANAKUR, TQ: RANEBENNUR,
DIST: HAVERI-581208.
...RESPONDENTS
(BY SRI. B. M. PATIL, ADV. FOR R1 TO R5,
SMT. ASAMA N. MAKANDAR, ADV. FOR R6)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO SET ASIDE THE JUDGMENT & AWARD PASSED BY
THE ADDL. SENIOR CIVIL JUDGE & MEMBER, MACT, HAVERI IN
M.V.C NO.185/2017 DATED 01.02.2019 IN THE INTEREST OF
JUSTICE AND EQUITY.
IN MFA NO.102231/2019:
BETWEEN:
1. THE DIVISIONAL CONTROLLER,
NEKRTC, HOSAPETE DIVISION,
HOSAPETE, DIST: BALLARI.
2. THE AUTHORIZED SIGNATORY,
SELF INSURANCE NEKRTC LTD,
DIVISIONAL OFFICE HOSAPETE/
HOOVINAHADAGALI,
DIST: BALLARI, BOTH APPELLANTS ARE
REPRESENTED BY CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. S. C. BHUTI, ADVOCATE)
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AND:
1. DYAMAVVA W/O. LAXMAN PUJAR,
AGE: 27 YEARS, OCC:NIL,
R/O. MEDLERI, TQ: RANEBENNUR,
DIST: HAVERI, NOW R/AT: GUTTAL,
TQ & DIST: HAVERI-581211.
2. NAGARAJ S/O. BASAPPA GONER,
AGE: MAJOR, OCC: OWNER OF THE MOTOR
CYCLE BEARING REG. NO.KA-27/H-6891,
R/O. MANAKUR, TQ: RANEBENNUR,
DIST: HAVERI-581208.
...RESPONDENTS
(BY SRI. B. M. PATIL, ADV. FOR R1;
SMT. ASAMA N. MAKANDAR, ADV. FOR R2)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO
SET ASIDE JUDGMENT & AWARD PASSED BY ADDL. SENIOR CIVIL
JUDGE AND MEMBER, MACT, HAVERI IN M.V.C. NO.184/2017 DATED
01.02.2019 IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.102802/2022:
BETWEEN:
SMT. DYAMAVVA W/O. LAXMAN PUJAR,
AGE: 30 YEARS, OCC: NIL,
R/O. MEDLERI, TQ: RANEBENNUR,
NOT AT GUTTAL, TQ & DIST: HAVERI-581108.
...APPELLANT
(BY SRI. B. M. PATIL, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER,
NEKRTC, HOSAPET DIVISION,
HOSAPET, DT: BALLARY-583201.
2. THE AUTHORIZED SIGNATORY,
SELF INSURANCE NEKRTC LTD,
DIVISIONAL OFFICE HOSAPET,
HOOVINAHADAGALI, DT: BALLARY-583201.
3. SHRI. NAGARAJ S/O. BASAPPA GONER,
AGE: MAJOR, OCC: OWNER OF THE
MOTORCYCLE BEARING REG.NO.KA-27/H-6891,
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R/O. MANAKUR, TQ: RANEBENNUR, DT: HAVERI-581208.
...RESPONDENTS
(BY SRI. S. C. BHUTI, ADV. FOR R1 & R2;
NOTICE TO R3 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING
JUDGMENT AND AWARD IN M.V.C NO.184/2017 DATED 01.02.2019
BY THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
MEMBER MACT, HAVERI IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for disposal.
2. These appeals are directed against common
judgment and award dated 1.2.2019 passed in MVC Nos.184
and 185 of 2017 on the file of learned Addl. Senior Civil Judge
and Member, MACT, Hukkeri (for short, 'Tribunal').
3. MFA No.102230/2019 is filed by the Corporation
challenging the saddling of liability to an extent of 85% as well
as quantum of compensation awarded by the Tribunal in MVC
No.185/2017, whereas the claimants have filed MFA
No.102233/2022 seeking enhancement of compensation for the
accidental death of Sri.Laxman Pujar.
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4. MFA No.102231/2019 is filed by the Corporation
challenging judgment and award in MVC No.184/2017, whereas
the injured/claimant has filed MFA No.102802/2022 seeking
enhancement of compensation for the accidental injuries
sustained by Smt. Dyamavva.
5. Brief facts leading to filing of these appeals are that
on 25.05.2016 at about 9.30 a.m., one Laxman Pujar
(deceased in MVC No.185/2017) was proceeding on motorcycle
bearing registration No.KA-27/H-6891 from Guttal to Medleri
village on Guttal-Ranebennur Road, along with his wife
Smt.Dyamavva, pillion rider (injured in MVC No.184/2017).
When they came near the land Bhatra of Halehonatti village,
one NEKRTC bus bearing registration No.KA-35/F-095 driven by
its driver in a rash and negligent manner, dashed to the
motorcycle. Due to which, both rider and pillion rider fell down
and sustained grievous injuries. The rider Laxman Pujar died
on the spot due to fatal injuries and the injured Dyamavva
sustained grievous injuries to several parts of her body.
Immediately, she was shifted to Government Hospital,
Ranebennur for treatment. Thereafter, she was shifted to SS
Institute of Medical Science and Research Centre, Davanagere
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for higher treatment, wherein she took treatment as inpatient.
It is averred that the deceased Laxman Pujar was aged about
30 years, was doing private job and also doing business,
thereby getting monthly income of Rs.30,000/- per month. The
injured Dyamavva was aged about 25 years and she was doing
coolie work and earning Rs.18,000/- per month. The legal heirs
of the deceased Laxman filed claim petition in MVC
No.185/2017 and the injured Dyamavva filed claim petition in
MVC No.184/2017 seeking compensation.
6. The respondent/Corporation entered appearance
and filed written statement denying the entire averments made
in the claim petitions. It is averred that there was no
negligence on the part of the driver of the offending bus and it
is the rider of the motorcycle, who caused the accident in
question. It is also averred that the claim of the claimants are
exorbitant and without any basis. Thus, sought for dismissal of
the claim petitions.
7. During trial, the claimants examined two witnesses
as PW1 & PW2 and marked the documents as Exs.P1 to P14.
The respondent/Corporation examined the driver of the bus as
RW1, but no documents are marked.
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8. The Tribunal on appreciation of entire material
available on record held that the rider of the motorcycle was
negligent to an extent of 15% and the driver of the offending
bus was negligent to an extent of 85% in causing the accident.
The Tribunal awarded total compensation of Rs.1,29,540/- with
interest at the rate of 6% per annum in MVC No.184/2017 and
Rs.11,51,920/- (Rs.13,55,200 - 15% negligence) with interest
at 6% per annum in MVC No.185/2017. Being aggrieved by
the liability as well as quantum of compensation, the
Corporation as well as the claimants have filed the above
appeals.
9. I have heard the arguments of learned counsel
Sri.B.M. Patil for the claimants and learned counsel
Sri.S.C.Bhuti for the Corporation.
10. Sri.S.C.Bhuti, learned counsel appearing for the
appellant/Corporation in support of his appeals would
vehemently contend that the Tribunal committed grave error in
coming to a conclusion that rider of the motorcycle was
negligent only to an extent of 15%. Learned counsel refers to
the sketch made available on record and submits that the
accident has taken place in the middle of the road and taking
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note of the same, the jurisdictional Police have filed charge
sheet against the driver of the bus as well as rider of the
motorcycle. He submits that the Tribunal ought to have
fastened liability to an extent of 50% each on the rider of the
motorcycle as well as driver of the bus. Hence, he seeks to
modify the judgment and award. Learned counsel Sri.Bhuti
further argues that the award of compensation by the Tribunal
in respect of injured Dyamavva as well as deceased Laxman
Pujar is on the higher side on all heads and therefore, seeks to
modify the same by awarding appropriately. Lastly, he submits
that the Corporation has paid a sum of Rs.15,000/- as interim
compensation in MVC No.185/2017, the same shall be deducted
from total compensation. Hence, he seeks to allow the appeals
filed by the Corporation
11. Per contra, learned counsel Sri.B.M. Patil appearing
for the appellants/claimants supporting the impugned judgment
and award of the Tribunal would submit that taking note of the
investigation material and the evidence available on record, the
Tribunal has rightly come to a conclusion that the rider of the
motorcycle was negligent to an extent of 15% and the said
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finding of the Tribunal is in consonance with the evidence
available on record, which does not call for interference.
12. Learned counsel Sri.B.M.Patil makes further
submission on the quantum of compensation and submits that
the Tribunal committed an error in assessing the income of the
deceased Laxman as well as injured Dyamavva at Rs.6,000/-
per month. He further submits that the claimants have
specifically pleaded that the deceased Laxman was earning
Rs.30,000/- per month by doing private job as well as business
and the injured Dyamavva was earning Rs.18,000/- per month
by doing coolie work. It is his submission that the Tribunal
committed an error in not awarding compensation under the
head of loss of consortium to each of the claimants in MVC
No.185/2017 and seeks to award the same. He further argues
that the Tribunal committed an error in assessing the disability
of injured Dyamavva in MVC No.184/2017 at 5%, which is
contrary to the evidence of PW2-Doctor, who opined that the
injured Dyamavva has suffered 20% disability. He further
argues that the Tribunal in MVC No.184/2017 has awarded a
meager compensation under the head of pain and suffering and
loss of amenities, hence, he seeks to enhance the same. Thus,
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he seeks to allow the appeals filed by the claimants for
enhancement of compensation appropriately.
13. Having heard the learned counsel for the parties
and on perusal of the material available on record, the following
points would arise for consideration in these appeals:
a) Whether the Tribunal is justified in holding
that the rider of the motorcycle i.e., deceased
Laxman was negligent in causing the accident
to an extent of 15%?
b) Whether the claimants in both the appeals
would be entitled for enhanced compensation?
14. Answer to the above points would be in the
'affirmative' for the following reasons:
15. Parties to the proceedings do not dispute that on
25.05.2016 in a road accident, Sri.Laxman Pujar sustained fatal
injuries and succumbed to the same and the pillion rider
Dyamavva sustained grievous injuries and had taken treatment
at different hospitals. It is also not in dispute that the
jurisdictional police after investigation have filed charge sheet
against driver of the bus as well as rider of the motorcycle.
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CONTRIBUTORY NEGLIGENCE
16. The Tribunal taking note of the evidence available
on record has recorded a finding at paragraphs-15 to 18 and
has come to a conclusion that the rider of the motorcycle was
negligent to an extent of 15%. The contention of the
appellant/Corporation that sketch available on record indicates
that the accident has taken place in the middle of the road,
hence, the Tribunal ought to have held that the rider of the
motorcycle has contributed to the accident in question to an
extent of 50%. The said contention of the
appellant/Corporation is liable for rejection for the reason that
sketch available on record indicates that width of the road is
18.6 feet and spot of the accident is shown as middle of the
road. On close perusal of the mark i.e., spot of the accident, it
is towards southern side of the road. In other words, towards
southern side of the road, approximately more than 10 feet
road is left towards northern side, where bus would have been
passed easily. The sketch available on record clearly indicates
the spot of the accident where the road is at the curve. Hence,
this Court cannot come to a definite conclusion that the rider of
the motorcycle was negligent to an extent of 50%. This Court
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cannot place its reliance only on the sketch and come to a
conclusion that the rider of the motorcycle has contributed to
the accident in question to an extent of 50%, in the absence of
independent and corroborative evidence available on record.
Therefore, I do not find any error in the finding recorded by the
Tribunal insofar as fastening of liability is concerned to an
extent of 15% on the rider of motorcycle and 85% on the
driver of the bus. Accordingly, the 1st point is answered in the
affirmative.
QUANTUM OF COMPENSATION
IN MFA NO.102233/2022 (MVC NO.185/2017)
17. The contention of the claimants is that the deceased
Laxman was doing private job and business, earning
Rs.30,000/- per month and the injured Dyamavva was doing
coolie work and earning Rs.18,000/- per month. Admittedly,
the appellants/claimants have failed to produce cogent and
acceptable evidence to substantiate the income of the deceased
Laxman as well as injured Dyamavva. Hence, in the absence of
cogent and acceptable evidence on record, it would be just and
appropriate to assess the income of the deceased Laxman as
well as injured Dyamavva notionally placing reliance on income
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chart prepared by KSLSA. Accordingly, this Court assesses
notional income of the deceased Laxman as well as injured
Dyamavva at Rs.8,750/- per month as against Rs.6,000/- per
month assessed by the Tribunal. There is no dispute with
regard to age of the deceased as 30 years, applicable multiplier
of 17 and deduction of 1/4th of the assessed income towards
personal and living expenses of the deceased, since there are
five dependents. The Tribunal is justified in adding 40% of the
assessed income towards loss of future prospects, which is
undisturbed. Thus, the claimants would be entitled to modified
compensation on the head of loss of dependency as under:
Rs.8,750 + 40% x 12 x 17 x ¾ = Rs.18,74,250/-
18. The Tribunal committed an error in not awarding
any compensation under the head of loss of consortium. In
terms of decision of Hon'ble Apex Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram &
Others1, claimants No.1 to 5 would be entitled to Rs.44,000/-
each including 10% escalation under the head of loss of
consortium. The Tribunal is justified in awarding a sum of
Rs.15,000/- each on the head of loss of estate and funeral
1
2018 ACJ 2782
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expenses. However, the said sums shall carry 10% escalation
for every three years. Thus, the claimants would be entitled
total compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.18,74,250/-
2. Loss of estate & Funeral expenses Rs. 33,000/-
3. Loss of consortium Rs. 2,20,000/-
Total Rs.21,27,250/-
Less: 15% contributory negligence Rs.3,19,088/-
Total compensation Rs.18,08,162/-
19. Admittedly, the appellant/Corporation has paid a
sum of Rs.15,000/- as interim compensation and the said
amount shall be deducted from total compensation of
Rs.18,08,162/-. After deduction of the same, the total
compensation would be Rs.17,93,162/- (Rs.18,08,162-15,000).
20. Thus, the claimants in MVC No.185/2017 would be
entitled to total compensation of Rs.17,93,162/- as against
Rs.11,51,920/- awarded by the Tribunal. The enhanced
compensation shall carry interest at the rate of 6% per annum
from the date of petition till realization.
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IN MFA NO.102802/2022 (MVC NO.184/2017)
21. As stated supra, the income of the injured
Dyamavva is assessed at Rs.8,750/- per month. PW2-Doctor
has assessed physical disability of the injured Dyamavva at
20%. The Tribunal taking note of oral evidence of PW2-doctor
and the medical evidence available on record has assessed
whole body disability of the injured Dyamavva at 5%. This
Court is of the considered view that the assessment of disability
of the injured Dyamavva by the Tribunal is in consonance with
the evidence available on record, which does not call for
interference. There is no dispute with regard to age of the
injured Dyamavva as 24 years and applicable multiplier of 18.
Thus, the claimant Dyamavva would be entitled to
compensation on the head of loss of future earning due to
disability as under:
Rs.8,750 x 12 x 18 x 5% = Rs.94,500/-
22. The Tribunal awarded a sum of Rs.10,000/- under
the head of pain and suffering, which is on the lower side.
Hence, it would be just and appropriate to enhance the same to
Rs.30,000/-. The Tribunal committed an error in awarding a
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meager sum of Rs.10,000/- on the head of loss of amenities.
Hence, it is just and proper to award another sum of
Rs.10,000/- on the said head. In view of re-assessment of
notional income, the claimant is entitled for a sum of
Rs.26,250/- (Rs.8,750 x 3 months) under the head of loss of
income during laid up period as against Rs.12,000/- awarded
by the Tribunal. The Tribunal awarded a sum of Rs.32,740/-
towards medical expenses, based on medical bills produced by
the injured Dyamavva, which is not disturbed. Thus, the
injured Dyamavva would be entitled to total compensation on
the following heads:
Sl. Particulars Amount
No.
1. Pain & Suffering Rs.30,000/-
2. Medical expenses Rs.32,740/-
3. Loss of future income due to disability Rs.94,500/-
4. Loss of income during laid-up period Rs.26,250/-
5. Loss of amenities Rs.20,000/-
Total Rs.2,03,490/-
Rounded off to Rs.2,03,500/-
23. Thus, the claimant in MVC No.184/2017 would be
entitled to total compensation of Rs.2,03,500/- as against
Rs.1,29,540/- awarded by the Tribunal. The enhanced
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compensation shall carry interest at the rate of 6% per annum
from the date of petition till realization.
24. In the result, this Court proceeds to pass the
following:
ORDER
a) The above appeals are allowed in part.
b) The common impugned judgment and award of
the Tribunal is modified to an extent that the
claimants in MVC No.185/2017 would be entitled
to total compensation of Rs.17,93,162/- as
against Rs.11,51,920/- awarded by the Tribunal
and the injured/claimant in MVC No.184/2017
would be entitled to total compensation of
Rs.2,03,500/- as against Rs.1,29,540/-
awarded by the Tribunal.
c) The enhanced compensation amount in both
cases shall carry interest at the rate of 6% per
annum from the date of petitions till the date of
payment.
d) The appellant/Corporation shall deposit the
enhanced compensation amount in both the
appeals filed by the claimants with accrued
interest before the Tribunal within a period of six
weeks from today.
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e) The apportionment, deposit and disbursement of
enhanced compensation shall be made as per
award of the Tribunal.
f) The amount in deposit made by the
appellant/Corporation in MFA No.102230/2019 &
MFA No.102231/2019 be transmitted to the
Tribunal.
g) Draw modified award accordingly.
h) Pending applications, if any, in the above
appeals are disposed off, as not surviving for
consideration.
Sd/-
JUDGE
JTR
