Karnataka High Court
The Divisional Controller vs Smt. Asmita W/O. Shivaji Thorat on 16 October, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 102318 of 2022
C/W MFA No. 104004 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.102318 OF 2022 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.104004 OF 2023 (MV-D)
IN MFA NO. 102318 OF 2022:
BETWEEN:
THE DIVISIONAL CONTROLLER,
M.S.R.T.C, SANGLI, DIVISION, SANGLI,
STATE: MAHARASHTRA.
...APPELLANT
(BY SRI. NAMAZIABDUL SATTAR RAHIMANSAHEB, ADVOCATE)
AND:
Digitally signed by 1. SMT. ASMITA W/O. SHIVAJI THORAT,
BHARATHI H M
Location: HIGH
COURT OF
AGE: 37 YEARS, OCC: HOUSEHOLD WORKS.
KARNATAKA
DHARWAD BENCH
Date: 2024.10.24
10:32:29 +0530 2. KUMARI. AMRUTA D/O. SHIVAJI THORAT,
AGE: 19 YEARS, OCC: STUDENT.
3. KUMAR VISHWAJITH S/O. SHIVAJI THORAT
AGE: 18 YEARS, OCC: STUDENT.
4. KUMARI AKSHATA D/O. SHIVAJI THORAT,
AGE: 16 YEARS, OCC: STUDENT,
RESPONDENT NO. 4 BEING MINORS R/BY THEIR
NATURAL MOTHER RESPONDENT NO.1.
5. SHRI. NAMADEV S/O. MAHADEV THORAT
AGE: 88 YEARS, OCC: NIL.
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MFA No. 102318 of 2022
C/W MFA No. 104004 of 2023
6. SMT. AKKATAI W/O. NAMADEV THORAT
AGE: 80 YEARS, OCC. NIL,
ALL ARE R/O. SONSAL,
TQ: KADEGAON, DIST: SANGLI AND
ALSO AT BHALAWANI, TQ: VITA,
DIST: SANGLI, NOW AT
C/O. MALIKAJAN MAHALINGPUR,
BEHIND GIRLS HOSTEL, ATHANI-591304,
DIST: BELGAVI.
...RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R2, R3, R5 & R6;
R4 IS MINOR REP. BY R1;
NOTICE TO R1 IS AWAITING VIDE ORDER DATED 24.09.2024)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 13.04.2022 PASSED
IN MVC NO.346/2020 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI,
AWARDING COMPENSATION OF Rs.27,43,920/- WITH INTEREST AT 6
PERCENT P.A. FROM THE DATE OF PETITION.
IN MFA NO. 104004 OF 2023:
BETWEEN:
1. KUMARI. AMRUTA D/O. LATE SHIVAJI THORAT,
AGE: 20 YEARS, OCC: STUDENT.
3. KUMAR. VISHWAJITH S/O. SHIVAJI THORAT,
AGE: 19 YEARS, OCC: STUDENT.
4. KUMARI. AKSHATA D/O. SHIVAJI THORAT,
AGE: 17 YEARS, OCC: STUDENT,
SINCE THE APPELLANT NO.4 IS MINOR AND
THEREBY SHE IS R/BY HER NATURAL GUARDIAN
GRANDFATHER - APPELLANT NO.4 HEREIN.
SINCE, THE NATURAL MOTHER APPELLANT NO.1
HAS GOT REMARRIED DURING PENDENCY
OF THE CLAIM PETITION.
5. SHRI. NAMDEV S/O. MAHADEV THORAT,
AGE: 89 YEARS, OCC: AGRICULTURE (NOW NIL).
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MFA No. 102318 of 2022
C/W MFA No. 104004 of 2023
6. SMT. AKKATAI W/O. NAMDEV THORAT,
AGE: 80 YEARS, OCC: HOUSEHOLD WORK,
ALL APPELLANTS RESIDING AT SONSAL,
TALUKA: KADEGAON, DIST: SANGLI,
AND ALSO AT BHALAWANI,
TALUKA: VITA, DIST: SANGLI.
NOW RESIDING AT C/O. MALIKAJAN MAHALINGPUR,
BEHIND GIRLS HOSTEL, ATHANI,
DIST: BELAGAVI-591304.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER
M.S.R.T.C. SANGLI DIVISION,
(MAHARAHSTRA STATE ROAD TRANSPORT
CORPORATION), SANGLI,
MAHARASHTRA STATE-416416.
2. SMT. ASMITA W/O. LATE SHIVAJI THORAT
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O. BHALAWANI VILLAGE,
TALUKA: VITA, DISTRICT: SANGLI,
MAHARASHTRA STATE-415311.
...RESPONDENTS
(BY SRI. A.S.R.NAMAZI, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
13.04.2022 PASSED IN MVC NO. 346/2020 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL AT ATHANI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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MFA No. 102318 of 2022
C/W MFA No. 104004 of 2023
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)
1. M.F.A. No.102318/2022 is filed by the MSRTC and M.F.A.
No.104004/2023 is filed by the claimants, challenging the
judgment and award dated 13.04.2022 passed by the
Additional Senior Civil Judge and JMFC and Additional MACT,
Athani in M.V.C. No.346/2020.
2. Facts giving rise to the filing of the appeals briefly stated
are that on 07.02.2020 at about 10:45 a.m., the deceased
Shivaji S/o. Namdeve Thorat was proceeding alongwith his
daughter - petitioner No.4, on his motorcycle bearing
registration No.MH-10/AR-7709. When they came infront of Raj
Petro Pump, Nandare Village, the driver of MSRTC bus bearing
registration No.MH-14/BT-1071 which was being driven in a
rash and negligent manner, dashed against the motorcycle of
the deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries. He was shifted to
Government Hospital, Sangli and thereafter shifted to Bharati
Hospital, Sangali and during the treatment, he succumbed to
the injuries.
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3. The claimants filed a petition under Section 166 of the Act
seeking compensation for the death of the deceased along with
interest.
4. Upon service of notice, the respondent appeared through
counsel and filed written statement denying the averments
made in the claim petition.
5. On the basis of the pleadings of the parties, the Claims
Tribunal framed the issues and thereafter, recorded the
evidence. The Tribunal, by impugned judgment and award has
partly allowed the claim petition and held that the claimants are
entitled to a compensation of Rs.27,46,920/- along with
interest at the rate of 9% p.a. and directed the respondent
MSRTC to deposit the compensation amount along with
interest. Being aggrieved, the present appeals have been filed.
6. Sri.Namaziabdul Sattar Rahimansaheb, the learned
counsel appearing for the MSRTC has raised the following
contentions:
Re. Negligence:
7. The accident occurred due to the negligence of the
deceased himself. He further contended that the deceased was
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driving the motorcycle in the middle of the road without
following traffic rules and he was using the mobile phone while
riding the motorcycle and dashed against the MSRTC bus, the
same is evident from the sketch and also the evidence of PW5,
the same has not been considered by the Tribunal. The Tribunal
is erred in holding that the driver of the bus alone is negligent
in causing the accident.
Re. Quantum of compensation:
8. He has contended that even though the claimant has
claimed that he was earning Rs.20,000/- per month, he has not
produced any document to establish the same. Under these
circumstances, the notional income assessed by the Tribunal at
Rs.14,500/- is on higher side.
9. Lastly he has contended that considering the age and
avocation of the deceased, the overall compensation awarded
by the Tribunal is on higher side. Hence, he sought for allowing
the appeal filed by the MSRTC.
10. On the other hand, Sri.Sanjay S. Katageri, the learned
counsel appearing for the claimants has raised the following
counter contentions:
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Re. Negligence:
11. The accident is occurred due to the negligence of the
driver of the MSRTC bus. He came from opposite direction and
proceeded extreme right side of the road and dashed against
the motorcycle. He further contended that immediately after
the incident, the complaint has been lodged against the driver
of the bus and the Police has registered an FIR against the
driver of the bus. After thorough investigation, charge sheet
has been filed against the driver of the bus. The Tribunal after
considering the sketch, complaint, IMV report has rightly held
that the driver of the bus alone is negligent in causing the
accident.
Re. Quantum of compensation:
12. Firstly, the claimants claim that at the time of the
accident, the deceased was earning Rs.20,000/- per month.
The Tribunal has assessed notional income of the deceased at
Rs.14,500/- per month which is on lower side.
13. Secondly, as per the driving licence of the deceased at
Ex.P11, the date of birth of the deceased was 10.11.1980. As
on the date of the accident, he was aged about 39 years. The
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Tribunal has erred in considering the age of the deceased as
40, on the basis of the postmortem report.
14. Thirdly, as per the law laid down by the Hon'ble Supreme
Court in the case of NATIONAL INSURANCE CO. LTD. -v-
PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case
the deceased was self-employed or on a fixed salary, an
addition of 40% of the established income towards 'future
prospects' should be the warrant where the deceased was
below the age of 40 years. The same may be considered.
15. Thirdly, as per the judgment of the Hon'ble Supreme
Court in the case of MAGMA GENERAL INSURANCE CO. LTD.
-V- NANU RAM [2018 ACJ 2782], claimants are entitled for
compensation of Rs.40,000/- under the head of 'loss of filial
consortium/loss of love and affection'. With the above
contentions, he prays for allowing the appeal filed by the
claimants.
16. Heard the learned counsel for the parties. Perused the
judgment and award.
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Re. Negligence:
17. The specific case of the claimants is that on 07.02.2020
at about 10:45 a.m., the deceased Shivaji was proceeding on
his motorcycle bearing registration No.MH-10/AR-7709 at
Nandare Village. When they reached near Raj Petrol Pump, the
driver of the MSRTC bus bearing registration No.MH-14/BT-
1071 drove his vehicle in rash and negligent manner and
dashed to the motorcycle of the deceased. Due to the impact,
the said Shivaji fell down and suffered injury and succumbed to
the injury on 08.02.2020. The claimants are legal
representatives of the deceased, have filed the claim petition
under Section 166 of the Motor Vehicles Act. To prove their
case, claimant No.5 has been examined as PW1 and they have
produced 11 documents.
18. Under the Motor Vehicles Act in the claim petition before
the Claims Tribunal the standard of proof is much below than
what is required in a criminal case as well as in the civil case.
No doubt, before the Tribunal, there must be some material on
the basis of which the Tribunal can arrive or decide things
necessary to decide for awarding compensation, but the
Tribunal is not expected to take or to adopt a nicety of a civil or
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criminal case. After all it is a summary enquiry and it is the
legislation for the welfare of the Society. The proceedings
under the Motor Vehicles Act are not akin to the proceedings
under civil rules. Hence, strict rules of evidence are not
required to be followed in this regard. In the case of MANGLA
RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5
SCC 656, the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined
similar situation where the evidence of claimant's
eyewitness was discarded by the Tribunal and that
the respondent in that case was acquitted in the
criminal case concerning the accident. This Court,
however, opined that it cannot be overlooked that
upon investigation of the case registered against the
respondent, prima facie, materials showing
negligence were found to put him on trial. The Court
restated the settled principle that the evidence of the
claimants ought to be examined by the Tribunal on
the touchstone of preponderance of probability and
certainly the standard of proof beyond reasonable
doubt could not have been applied."
19. PW1 in his evidence he has reiterated the statement
made in the claim petition. He has contended that the accident
is occurred due to the negligence of driver of the bus. On the
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basis of the complaint lodged by PW1, the Police has registered
an FIR against the driver of the bus and drawn the mahazar
and prepared the sketch as per Ex.P5. It is very clear from the
sketch that the deceased was travelling in the motorcycle from
Nandare to Karnal. The offending vehicle was coming from
opposite direction. The width of the road is 23 feet. The
accident is occurred west side of the road. Therefore, it is very
clear that the driver of the bus has come extreme right side of
the road and dashed against the motorcycle. Considering the
evidence of PW1, FIR, Mahazar, sketch, charge sheet and IMV
report, the Tribunal has rightly held that the driver of the bus
has alone is negligent in causing the accident.
Re. Quantum of compensation:
20. Firstly, the claimants claim that the deceased was doing
milk vending business and earning Rs.20,000/- per month, they
have not produced any documents to establish the same. Under
these circumstances, notional income has to be assessed
considering the guidelines issued by the Karnataka Legal
Services Authority. For the accident occurred in the year 2020,
the notional income is fixed at Rs.13,750/-. Hence, monthly
income of the deceased is to be considered as Rs.13,750/-. As
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per Ex.P11, date of birth of the deceased was 10.11.1980. As
on the date of the accident, he was aged about 39 years.
21. In view of the judgment of Apex Court in the case of
NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS reported in [AIR 2017 SC 5157], 40% of the
income of the deceased is to be added for future prospects. The
Tribunal has rightly deducted 1/4th of the income of the
deceased for personal expenses. The multiplier applicable to
that age group is 15. Accordingly, the loss of dependency has
been reassessed as follows:
Rs.13,750 + 40% - ¼ X 12 X 15 = Rs.25,98,840/-
22. In view of the law laid down by the Hon'ble Supreme
Court in the case of Magma General Insurance Company
Limited (supra), the claimants being the wife, three children
and parents of the deceased Shivaji, are entitled for
compensation of Rs.40,000/- each towards "loss of consortium"
i.e., Rs.2,40,000/- (Rs.40,000 X 6).
23. The accident is of the year 2020. In view of the ratio laid
down in the case of PRANAY SETHI (supra), the Apex Court
enhanced the compensation on conventional heads, viz., loss of
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estate, loss of consortium and funeral expenses should be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively and the
said amounts should be enhanced at the rate of 10% in every
three years. Now almost three years have been elapsed and
therefore, the claimants are entitled for 10% escalation on loss
of estate, loss of consortium and funeral expenses. Hence, they
are entitled for Rs.15,000/- + 10% = Rs.16,500/- towards
loss of estate, Rs.2,40,000/- + 10% = Rs.2,64,000/- towards
loss of consortium, and Rs.15,000/- + 10% = Rs.16,500/-
towards funeral expenses. In other heads, the compensation
awarded by the Tribunal is just and reasonable.
24. Thus, the claimants are entitled to the re-assessed
compensation as follows:
Towards loss of dependency Rs.25,98,840/-
Towards funeral expenses and Rs.16,500/-
transportation charges
Towards loss of consortium Rs.2,64,000/-
Towards loss of estate Rs.16,500/-
Total Rs.28,95,840/-
25. In the result, we pass the following:
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ORDER
a) The appeals are disposed of. The judgment of
the Claims Tribunal is modified.
b) After confirming the negligence on the part of
the driver of the offending MSRTC bus, the
claimants are entitled to a compensation of
Rs.28,95,840/-.
c) The MSRTC is directed to deposit the
compensation amount along with interest at
6% p.a. from the date of filing of the claim
petition till the date of realization, within a
period of six weeks from the date of receipt of
copy of this judgment.
d) The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
e) The apportionment, deposit and release of the
amount shall be in terms of the award of the
Tribunal.
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f) In view of the order dated 16.10.2024 passed
by this Court, the claimants are not entitled for
interest on the enhanced compensation for the
delayed period of 314 days in filing the appeal.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
RSH / Ct:VH
