Karnataka High Court

Smt. Shilpa vs The Managing Director on 21 November, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                              MFA No. 103052 of 2023




                                    IN THE HIGH COURT OF KARNATAKA,
                                             DHARWAD BENCH

                              DATED THIS THE 21ST DAY OF NOVEMBER, 2024

                                                    PRESENT
                             THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                       AND
                               THE HON'BLE MR. JUSTICE VENKATESH NAIK T

                       MISCELLANEOUS FIRST APPEAL NO. 103052 OF 2023 (MV-D)


                      BETWEEN:


                      1.   SMT. SHILPA
                           W/O. JAYARAJ SATENAHALLI,
                           AGE 33 YEARS,
                           OCC: HOUSEHOLD WORK.

                      2.   KUMARI SANVI
                           D/O. JAYARAJ SATENAHALLI,
                           AGE 5 YEARS, OCC: NIL,
                           SINCE APPELLANT NO.2 IS MINOR
Digitally signed by        REPRESENTED AS MINOR GUARDIAN
MANJANNA E
Location: HIGH             BY APPELLANT NO.1.
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2024.11.25      3.   SMT. SHUSHEELLA
10:53:59 +0530
                           W/O. MADIVALAPPA SATENAHALLI,
                           AGE 57 YEARS, OCC: HOUSEHOLD,
                           ALL ARE R/O. YALAKKI ONI,
                           TQ & DIST. HAVERI-581110.
                                                                          ...APPELLANTS
                      (BY SRI. B. M. PATIL, ADVOCATE)

                      AND:

                      1.   THE MANAGING DIRECTOR,
                                  -2-
                                       NC: 2024:KHC-D:17001-DB
                                       MFA No. 103052 of 2023




     NWKRTC, HAVERI DIVISION &
     ITS SELF INUSANCE FUND AT
     NEAR RTO OFFICE,
     OLD P.B. ROAD,
     HAVERI-581110.
     (OWNER AND INSURER OF KSRTC BUS.


2.   SHRI VISHAL
     S/O. NAGARAJ SARATRAM,
     AGE. MAJOR, OCC. BUSINESS,
     R/O. SHUKRAVAR PETH,
     TQ. SAVANUR,
     DT. HAVERI-581118.
     (OWNER OF MOTOR CYCLE).


                                                 ...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR R1;
     SRI. NAVEEN CHATRAD, ADV. FOR R2)


      THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
PRAYING TO ENHANCED THE COMPENSATION BY MODIFYING THE
JUDGMENT AND AWARD IN M.V.C NO.217/2019 DATED 14.03.2023 BY
THE COURT OF ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT,
HAVERI AND ALSO FIXING THE ENTIRE NEGLIGENCE ON THE PART OF
NWKRTC I.E, RESPONDENT NO.1 AND PAY THE COMPENSATION TO
THE CLAIMANTS IN THE INTEREST OF JUSTICE AND EQUITY.


      THIS    APPEAL,   COMING   ON FOR   ADMISSION,   THIS   DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:       THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
              AND
              THE HON'BLE MR. JUSTICE VENKATESH NAIK T
                                     -3-
                                           NC: 2024:KHC-D:17001-DB
                                           MFA No. 103052 of 2023




                               ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

This appeal is filed by the claimants challenging the

judgment and award dated 14.03.2023 passed in M.V.C.

No.217/2019 on the file of the learned Addl. Senior Civil Judge

and Member, MACT, Haveri1, whereby the Tribunal awarded total

compensation of Rs.14,70,000/- with interest at 6% per annum

from the date of petition till its realization. However, the Tribunal

saddled 50% contributory negligence on the deceased and

remaining 50% on the driver of NWKRTC2 bus.

2. For the sake of convenience, the parties are referred

to as per their rankings before the Tribunal.

3. Brief facts of the claimants' case before the Tribunal

are as under:

On 04.07.2017 at about 5.45 p.m., the deceased Jayaraj

Satenahalli was proceeding on a motorcycle bearing registration

No.KA-27-W-0016 towards Huralikuppi at Mellagatti-Huralikuppi

road, near the land of one Naganagouda Patil. At that time, one

NWKRTC Bus bearing registration No.KA-42-F-0640 driven by its

'Tribunal' for short

'Corporation', for short

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driver came from opposite direction in a high speed, rash and

negligent manner and dashed to the motorcycle of the deceased

Jayaraj. Due to the impact, the deceased Jayaraj fell downd and

sustained severe head injuries and died on the spot. Hence, the

claimants filed claim petition under Section 166 of the Motor

Vehicles Act, 1988 before the Tribunal seeking compensation.

The deceased was aged about 34 years, was doing Nursery

Plantation and earning a sum of Rs.35,000/- per month.

4. The Tribunal considering the evidence on record at

Exs.P1 to P14, Ex.R1 to R13 and oral evidence of PW1 & RW1,

allowed the claim petition in part awarding a total compensation

of Rs.14,70,000/- with interest at 6% per annum from the date

of petition till its realization and saddled 50% contributory

negligence on the part of the deceased and remaining 50% on

the driver of NWKRTC bus. Being aggrieved by the same, the

claimants are in appeal.

5. Sri. B.M. Patil, learned counsel for the

appellants/claimants strenuously contended that the Tribunal

without considering the material available on record, has wrongly

saddled liability on the deceased to an extent of 50%, which is

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unjust and improper. The Tribunal ought to have saddled entire

negligence on the part of the driver of NWKRTC bus, as there

was curve on the spot of the accident. Secondly, the Tribunal

committed an error in assessing the income of the deceased at

Rs.8,000/- per month, which is on the lower side, inasmuch as

the deceased was doing Nursery Plantation and earning a sum of

Rs.35,000/- per month. Thirdly, the Tribunal has failed to award

any compensation under the head of loss of consortium, which

the claimants would be entitled to at Rs.40,000/- each. Thus, he

sought to allow the appeal.

6. Per contra, learned counsel for the

respondent/Corporation supports the impugned judgment and

award of the Tribunal and submits that considering the oral and

documentary evidence on record, the Tribunal awarded just and

reasonable compensation under each heads, which does not call

for interference at the hands of this Court. He further contended

that on appreciation of entire material evidence on record, the

Tribunal has rightly saddled 50% contributory negligence on the

part of the deceased. Thus, he prays for dismissal of the appeal.

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7. Having heard the learned counsel for the parties and

on perusal of the appeal papers including original records of the

Tribunal, the following points would arises for our consideration

in this appeal:

i) Whether the Tribunal has rightly justified in saddling liability to an extent of 50% on the part of the deceased?

ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?

8. Insofar as contributory negligence is concerned, from

the perusal of oral evidence of PW1 and documentary evidence

at Ex.P1-FIR, Ex.P2-Complaint, Ex.P3-Addl. Statement, Ex.P4-

Spot Panchanama, Ex.P5-Vehicle Seizure Panchanama, Ex.P6-

MVA Report and Ex.P9-Charge Sheet, it clearly establishes that

under Ex.P1-FIR, allegation was made against the deceased for

the offences punishable under Sections 279 & 304A of IPC and

complaint was lodged by driver-cum-conductor of Corporation

bus. As per Ex.P9-Final Report, Investigation Officer filed charge

sheet against the deceased for the offences punishable under

Sections 279 & 304A of IPC and later, the Investigation Officer

made the driver of Corporation bus as accused No.2 for similar

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offences. The contents of the charge sheet are not disputed by

the claimants or driver of Corporation bus. From the perusal of

Ex.P4-spot panchanama and photographs marked at Ex.R8 to

11, it clearly establishes that there is curve on the spot of the

accident and the motorcycle and corpus of the deceased was

fallen on the middle of the road; Corporation bus turned towards

extreme left side of the road. If we apply res ipsa loquitor, it

appears that the accident occurred in the middle of the road.

From the perusal of Exs.R8 to 11-Photographs, there was dent

on the front portion towards extreme right side of the bus. Thus,

it is clear that the driver of the bus came with high speed and

dashed to the motorcycle, however, he could have applied brake,

as it is a heavy motor vehicle. Hence, it is a fit case warranting

exercise of this Court's powers to interfere with the finding of the

Tribunal and saddle liability on the offending Corporation bus to

an extent of 60% and 40% on the part of the deceased Jayaraj.

Accordingly, the finding of the Tribunal as regards contributory

negligence is modified to that extent.

9. Insofar as quantum of compensation is concerned,

the Tribunal assessed the notional income of the deceased at

Rs.8,000/- per month, which is on the meager side. The

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accident is of the year 2017. No documentary evidence is placed

on record with regard to income of the deceased. In the absence

of any proof of income, taking note of Circular issued by the

Karnataka State Legal Services Authority as well as High Court

Legal Services Committee, Dharwad, we deem it appropriate to

re-assess the notional income of the deceased at Rs.10,250/-

per month.

10. The deceased was aged about 34 years at the time of

the accident. The respondents have not disputed this aspect. As

per decision of the Hon'ble Apex Court in the case of Sarala

Verma & Others Vs. Delhi Transport Corporation &

Another3, multiplier applicable to the age of the deceased is

'16'.

11. The deceased Jayaraj died leaving behind his wife,

daughter and mother and therefore, appropriate deduction

towards personal expenses of the deceased would be 1/3rd. The

Tribunal placing reliance on a decision of the Hon'ble Apex Court

in the case of National Insurance Company Limited Vs.

Pranay Sethi & Others4, has rightly considered the addition of

2009 ACJ 1298

(2017) 16 SCC 680

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40% of the assessed income towards future prospects, since the

deceased was self-employed and below the age of 40 years.

Thus, loss of dependency is reckoned as under:

Rs.10,250 + 40% (Rs.4,100) = 14,350 x 1/3 = Rs.4783.33

Rs.14,350-Rs.4783.33=Rs.9566.66 x 12 x 16 = Rs.18,36,798.72

Which is rounded off to Rs.18,36,800/-

12. The Tribunal has committed an error in not awarding

fair compensation under the conventional heads. As per the

judgment rendered by the Hon'ble Apex Court in the case of

Magma General Insurance Company Limited Vs Nanu Ram

@ Churu Ram & Others5 and Pranay Sethi supra, the

claimants are entitled to Rs.40,000/- each towards loss of

consortium, Rs.15,000/- towards loss of estate and

Rs.15,000/- towards funeral expenses. Thus, in all, the

claimants are entitled to modified compensation as under:

        Loss of dependency                         Rs.18,36,800/-
        Loss of consortium (Rs.40000x3)            Rs. 1,20,000/-
        Loss of estate                             Rs.    15,000/-
        Funeral expenses                           Rs.    15,000/-
                                                   ------------------
                        Total                      Rs.19,86,800/-
                                                   ------------------





    2018 (18) SCC 130
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13. The claimants are entitled to total compensation of

Rs.19,86,800/- as against Rs.14,70,000/- awarded by the

Tribunal. Since the deceased has contributed negligence in the

occurrence of the accident to an extent of 40%, the claimants

would be entitled to total compensation of Rs.11,92,080/-

(Rs.19,86,800 x 60%) as against Rs.7,35,000/- awarded by the

Tribunal.

14. In the result, we pass the following:

ORDER

a) The appeal filed by the claimants is allowed in part.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants are entitled to modified compensation of Rs.11,92,080/- as against Rs.7,35,000/-awarded by the Tribunal.

c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization.

d) Respondent/Corporation shall deposit the enhanced compensation with accrued interest before the Tribunal within six weeks from the date of receipt of copy of this judgment.