Karnataka High Court
Rekha @ Guttemma W/O Suresh ... vs The Divisional Manager on 25 July, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 25th day of July 2012
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
Miscellaneous First Appeal No.25022/2010
C/w M.F.A. Crob No.745/2011
In M.F.A. No.25022/2010
Between:
The Divisional Controller,
N.W.K.R.T.C., Haveri Depot &
Self Insurance Fund, Haveri,
Dist: Haveri-581 110. ...Appellant
(By Sri. V.P Kulkarni, Advocate)
And:
1. Rekha @ Guttemma
W/o. Suresh Malannanavar,
Age: 23 Years, Occ: Household,
R/o. Kelavarakoppa, Tq: Hanagal,
Dist: Haveri, now at Vidyanagar,
Haveri-581 110.
2. Kumari Varsha
D/o. Suresh Malannanavar,
Age: 3 Years,
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3. Kumar Niranjan
S/o. Suresh Malannanavar,
Age: 4 Years,
Petitioners' No.2 & 3 are Minors
Rep. By their natural mother M/G
Petitioner/Respondent No.1.
4. Mailareppa
S/o. Neelappa Malannanavar,
Age: 55 Years,
Occ: Agriculture,
R/o. Kelavarakoppa,
Tq: Hanagal,
Dist: Haveri, now at Vidyanagar,
Haveri-581 110.
5. Kariyamma
W/o. Mailareppa Malannanavar,
Age: 53 Years, Occ: Household,
R/o. Kelavarakoppa,
Tq: Hanagal,
Dist: Haveri, now at Vidyanagar,
Haveri-581 110.
...Respondents
(By Respondents are served)
--------
This appeal is filed under Section 173(1) of MV
Act, against the judgment and award dated 26.08.2010
passed in MVC No.117/2009 on the file of the Prl. Civil
Judge (Sr.Dn.) and Member, Addl. MACT, Haveri,
awarding the compensation of Rs.13,04,352/- with
interest at the rate of 6% P.A., from the date of petition
till realisation.
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IN M.F.A. Crob No.745/2011:
Between:
1. Rekha @ Guttemma
W/o. Suresh Malannanavar,
Age: 24 Years, Occ: Household,
R/o. Kelavarakoppa, Tq: Hanagal,
Dist: Haveri.
2. Kumari Varsha
D/o. Suresh Malannanavar,
Age: 4 Years,
3. Kumar Niranjan
S/o. Suresh Malannanavar,
Age: 2 Years,
C.O No. 2 & 3 are Minors
Rep. By their M/G natural mother
i.e., No.1. R/o. Kelavarakoppa,
Tq: Hanagal, Dist: Haveri.
4. Mailareppa
S/o. Neelappa Malannanavar,
Age: 57 Years, Occ: Nil,
R/o. Kelavarakoppa,
Tq: Hanagal, Dist: Haveri.
5. Kariyamma
W/o. Mailareppa Malannanavar,
Age: 54 Years, Occ: Household,
R/o. Kelavarakoppa,
Tq: Hanagal,
Dist: Haveri. ... Cross Objectors
(By Sri. M.H Patil & Sri. G.S Hulmani, Advocates)
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And:
The Divisional Manager,
N.W.K.R.T.C., Haveri Depot &
Self-Insurance Fund, Haveri.
... Respondent
This Cross Objection is filed under Order 41 Rule
22 of CPC., against the judgment and award dated
26.08.2010 passed in MVC No.117/2009 on the file of
the Prl. Senior Civil Judge and Member, Addl. MACT,
Haveri, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
This appeal & Cross Objection coming on for
orders this day, H.S.Kempanna, J, delivered the
following:
JUDGMENT
MFA No.25022/2010 has been preferred by North- West Karnataka Road Transport Corporation challenging the negligence, consequently fastening the liability and also the quantum of compensation. The claimants have preferred cross-objections 745/2011 seeking for enhancement of compensation due to death of their sole bread earner.
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2. For the sake of convenience, the parties in this appeal would be referred to by their rank as they are arrayed in the claim petition before the Tribunal.
3. The claimants are the wife, children and parents of the deceased Suresh M.Malannanavar. According to them, the deceased was aged about 30 years and was working as a Marketing Development Officer in Shriram Bioseed Genetics India Ltd., situated at Hubli. He was drawing salary of Rs.14,000/- per month. On the date of the accident i.e., 27.11.2008 the deceased was riding his motor cycle bearing No.KA- 48/H-1047 on Guddadamulatalli-Somasagar road. At about 8.45 a.m., when he came near Ani cross on the said road, a KSRTC bus bearing registration No.KA- 27/F-93 driven by its driver at a high speed in a rash and negligent manner came from the opposite side and dashed against the motor cycle of the deceased. Due to the impact, the deceased was thrown into a ditch along :6: with his motor cycle. On account of which he sustained fatal injuries and died at the spot. The deceased was their sole bread earner. Therefore they filed the claim petition claiming compensation of Rs.50,00,000/- from the respondent-Corporation.
4. After service of notice, the respondent- Corporation appeared and contested the claim of the petitioners. They denied the accident having taken place on account of rash and negligent driving of the bus by their driver. On the other hand, they contended that the accident was on account of the rash and negligent riding of the motor cycle by the deceased himself. They also denied all other averments made by the claimants in respect of the age, occupation and income of the deceased. They specifically contended that as the accident has not taken place on account of the negligence of the driver of the bus, they are not liable to :7: pay any compensation and accordingly, they sought for dismissal of the petition as against them.
5. The Tribunal on the basis of the above pleadings framed the following issues:
"1. Whether the petitioners prove that, there was a road accident on 27-11-2008 at about 8-45 A.M. on Guddadarmulatalli- Somasagar road near Ani cross, to himself by the driver of KSRTC bus bearing registration No.KA-27/F-93?
2. Whether the petitioners further prove that, the said road accident was occurred solely due to the rash and negligent act of driver of KSRTC bus bearing registration No.KA-27/F-93?
3. Whether the petitioners prove that, Suresh S/o Mallarappa Malannanavar, was died on the spot due to the injuries sustained to him in the said road accident?:8:
4. Whether the petitioners prove that, they are entitled to receive compensation? If so, to what rate and from whom?
5. What order or award?"
6. The claimants in support of their case got examined the 1st petitioner-wife of the deceased as P.W.1, an eye witness to the accident as P.W.2 and a co- employee of the employer of the deceased as P.W.3. They produced in all 14 documents which came to be marked as Exs.P.1 to P.14. On behalf of the respondent- Corporation, they examined the conductor of the bus as R.W.1 but did not produce any documents in support of their case.
The Tribunal, on considering the oral and documentary evidence placed on record, held that the accident has taken place on account of rash and negligent driving of the bus by its driver resulting in :9: death of the deceased, as such, the claimants have established actionable negligence. Further the Tribunal looking to the evidence of the claimants, co-employee of the deceased and the documents placed on record, took the income of the deceased at Rs.8,250/- per month, deducted 1/4th towards personal expenses of the deceased and by applying multiplier of 17 having regard to age of the deceased awarded, in all, a sum of Rs.12,62,352/- towards loss of dependency. Further, it awarded a sum of Rs.42,000/- under the conventional heads. Thus, in all, it awarded a sum of Rs.13,04,352/- with interest at the rate of 6% per annum from the date of claim petition till realisation. It further saddled the liability of payment of compensation on the respondent- Corporation.
7. The appellant-Corporation being aggrieved of the finding of negligence, consequently fastening the liability on them and the quantum of compensation that : 10 : has been awarded have preferred the appeal. The claimants have preferred MFA cross-objections on the ground of inadequacy of compensation that has been awarded to them.
8. The learned counsel appearing for the appellant-Corporation contended that the evidence and the documents on record reveal that the accident has taken place on account of rash and negligent riding of the motor cycle by the deceased. Elaborating his submission, he contended that as the material on record reveals that the deceased himself has come and dashed to the rear wheel of the bus which is fortified from the evidence of R.W.1, the finding of the Tribunal holding that the accident has taken place on account of rash and negligent driving of the bus by its driver and consequently fastening liability on them is erroneous and cannot be sustained. He further contended that the material on record reveals that the deceased was holding temporary employment and as his future was : 11 : not certain, the Tribunal erred in taking his income at Rs.8,250/- per month and on that basis awarding Rs.12,62,352/- to-wards loss of dependency is excessive and therefore it calls for reduction. Hence a case for interference is made out.
9. Per contra, the learned counsel appearing for the claimants contended that the certificate issued by the employer of the deceased produced at Ex.P.8 reveals that he was getting salary of Rs.12,500/- as salary and Rs.1,500/- as D.A. per month. This is fortified from the evidence of P.W.3, who is one of the officials of the employer of the deceased. The Tribunal ignoring this material on record has taken his income as Rs.8,250/- per month which is not correct. Nextly, he also contended, as the deceased was in a permanent establishment, the Tribunal ought to have considered awarding compensation taking into consideration the future loss of income at 30% as laid down by the Apex Court in the case of Santosh Devi vs National Insurance : 12 : Co.Ltd.& Ors. Therefore, a case for enhancement is made out.
10. Taking the rival contentions, the evidence and the documents on record, the points that arise for our consideration are:-
i) Whether the Corporation has established that the accident has taken place on account of negligence of the deceased and not on account of actionable negligence of the driver of their bus?
ii) Whether the quantum of compensation awarded is excessive as contended by the Corporation or it deserves to be enhanced as contended by the claimants?
11. The facts are not in dispute. It is the case of the claimants that the accident has taken place on account of rash and negligent driving of the bus by its driver. In support of their case, they have examined P.W.2 an eye witness to the accident. P.W.2 in his : 13 : evidence has stated that on the date of the accident he was driving his cart on the road. When he was near the spot of the accident, he saw a KSRTC bus driven by its driver coming at a high speed in a rash and negligent manner from opposite direction and dashing against the motor cycle which was thrown into a ditch along with the rider due to which the rider sustained fatal injuries and died on the spot. His evidence further reveals that he has filed the complaint before the police on the very day i.e., on 27.11.2008. The material record i.e., Ex.P.1 FIR reveals on the basis of the complaint of P.W.2 the police have registered a case against to driver of the bus at about 10.30 am. In the said complaint, he has reiterated his version as given before the Tribunal. In the cross-examination of this witness nothing has been elicited to discredit his testimony. On the other hand, the Corporation, in order to establish that the accident has not taken place due to rash and negligent driving of the bus by its driver has examined the conductor of the : 14 : bus. His evidence discloses that he saw the rider of the motor cycle coming riding his motor cycle talking over cell phone; on seeing the bus, suddenly he came and dashed to the rear side of the bus. This evidence of R.W.1 cannot be believed for the reason that the material on record reveals that at the spot of the accident, the road is not straight road, but there is a curve. While negotiating the curve, the bus has come and dashed against the motor cycle of the deceased. The police after registration of the case have filed final report against the driver of the bus for the offences under Section 279, 338 and 304A of Indian Penal Code. The claimants have produced documents to support the same which are at Exs.P.1 to P.5. Among them recitals in the spot panchanama reveals that the accident has taken place as stated by P.W.2, who is an eye witness to the accident. At the time of hearing, on a query to the Court question, the learned counsel for the appellant submitted that the driver of the bus has expired. In our : 15 : view, the best person to explain the accident is the driver of the bus. However, as he is no more we have to appreciate the evidence of P.W.2 as against R.W.1. We have nothing on record to disbelieve the testimony of P.W.2 as against R.W.1, which is fortified from the documents at Exs.P.1 to P.5. Therefore, we do not find any merit in the submission of the learned counsel for the appellant that the accident did not take place on account of rash and negligent driving of bus by its driver. On the other hand, we hold that the accident has taken place on account of rash and negligent driving of the bus by its driver and not due to negligence of the deceased as contended by the corporation. The Tribunal, in our view, on appreciation of the evidence has come to the right conclusion that the accident has taken place on account of rash and negligent driving of the bus by its driver.
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12. Now coming to the question of quantum of compensation, it is submitted by the counsel for the appellant that the deceased was not in permanent employment, therefore, the Tribunal ought not to have taken his income at Rs.8,250/- per month relying upon the bank statement that has been placed on record by the claimants. We do not find any merit in the said submission of the counsel for the appellant- Corporation. The material on record reveals that as on that date, the deceased was in employment of Shriram Bioseeds Genetics India Limited, Hubli which is fortified from the evidence of P.W.3. Ex.P.8 which has been issued by the employer of the deceased reveals that his salary was Rs.12,500/- per month and he was getting D.A. of Rs.1,500/- per month. However, in the facts and circumstances of the case, we hold that the deceased was getting an income of Rs.10,000/- per month making provision for future prospects of the deceased by taking his income as determined by the Tribunal at : 17 : Rs.8,250/- itself. We find from the material on record that the claimants are 5 in number. It goes to show that the deceased was feeding 5 mouths. Therefore, the proper deduction towards personal expenses of the deceased would be 1/4th as has been done by the Tribunal. Deducting 1/4th out of the monthly income i.e., Rs.10,000/-, it comes to Rs.7,500/- per month which would be the loss of dependency to the claimants per month. Admittedly, the deceased was aged 30 years. Therefore, the proper multiplier that has to be adopted in the facts of the case is 17. Applying these factors, the claimants would be entitled to Rs.15,30,000/- as against Rs.12,62,352/- towards loss of dependency with interest at the rate of 6% from the date of petition till realisation. Insofar as the compensation that has been awarded by the Tribunal under conventional heads, we see no justification to enhance the same as it is in commensurate with the compensation which has to be awarded under the said head. Thus, in our view, the : 18 : claimants would be entitled enhanced compensation of Rs.2,67,648/- with interest at the rate of 6% from the date of petition till realisation. Accordingly, we proceed to pass the following:
ORDER
(i) M.F.A. No.25022/2010 is dismissed.
(ii) MFA Cross Objection No.745/2011 preferred by the claimants is partly allowed. The claimants are awarded enhanced compensation of Rs.2,67,648/- with interest at 6% per annum from the date of claim petition till realisation over and above the compensation that has been awarded by the Tribunal.
(iii) The appellant Corporation shall deposit the entire enhanced compensation with interest before the Tribunal within eight weeks from the date of receipt of the copy of the judgment and award.: 19 :
(iv) Apportionment of enhanced compensation to the claimants shall be in the same manner as has been done by the Tribunal.
The statutory amount in deposit made by the Corporation before this Court is ordered to be transmitted to the jurisdictional Tribunal for disbursement to the claimants.
SD/-
JUDGE SD/-
JUDGE Kms