Karnataka High Court
The Manager vs Vasanti Praveen Kabaralli on 12 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 102163 OF 2022 (MV-D)
C/W
MFA CROSS OBJ NO. 100106 OF 2022 (MV-D)
IN MFA NO. 102163 OF 2022
BETWEEN:
THE MANAGER,
RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
NEAR KOLHAPUR CIRCLE,
NEHRU NAGAR,
BELAGAVI 590009.
(INSURER OF TRUCK BEARING
NO. TN-37/6409
REPRESENTED BY ITS
AUTHORISED SIGNATORY.
YASHAVANT ...APPELLANT
NARAYANKAR
(BY SRI G.N. RAICHUR, ADVOCATE)
Digitally signed
by YASHAVANT
NARAYANKAR AND:
Date: 2023.12.22
12:22:56 +0530
1. VASANTI PRAVEEN KABARALLI,
AGE: 36 YEARS,
OCCUPATION: HOUSE HOLD,
R/O: SALAPUR - 591130.
TQ: RAMADURG, DIST: BELAGAVI.
2. SHRAVAN PRAVEEN KABARALLI,
AGE: 10 YEARS,
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
OCCUPATION: STUDENT
R/O: SALAPUR - 591130,
TQ: RAMADURG DIST: BELAGAVI.
3. KHUSHI PRAVEEN KABARALLI,
AGE: 4 YEARS, OCCUPATION: NIL,
R/O: SALAPUR - 591130,
TQ: RAMADURG DIST: BELAGAVI.
RESPONDENT NO. 2 AND 3 ARE MINORS
REPRESENTED BY RESPONDENT
NO. 1 VASANTI PRAVEEN KABARALLI.
4. YALLAPPA BASAVAREDDEPPA KABARALLI,
AGE: 65 YEARS,
OCCUPATION: NOT MENTIONED,
R/O: SALAPUR - 591130,
TQ: RAMADURG DIST: BELAGAVI.
5. KRISHNAMMA YALLAPPA KABARALLI,
AGE: 59 YEARS,
OCCUPATION: HOUSE HOLD
R/O: SALAPUR - 591130,
TQ: RAMADURG DIST: BELAGAVI.
6. SIDDU YALLAPPA KABARALLI,
AGE: 16 YEARS, OCCUPATION: STUDENT,
R/O: SALAPUR - 591130,
TQ: RAMADURG DIST: BELAGAVI.
SINCE MINOR REPRESENTED BY
MOTHER RESPONDENT
NO. 5 SIDDU YALLAPPA KABARALLI.
7. THE MANAGING PARTNER,
TEAM THAI AGHIN ROAD,
WAYS 5/93, KOLLUPALAYAM OPPOSITE,
SANIYUR CHECK POST,
KARUMATHAMPATTI
COIMBATORE, TAMILNADU 641659,
(OWNER OF TRUCK NO. TN-37/DX-6409)
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
8. THE MANAGING DIRECTOR,
NORTH EAST KARNATAKA
ROAD TRANSPORT,
CORPORATION SARIGE SADANA
CENTRAL OFFICE,
GULBURGA RAICHUR DIVISION
RAICHUR 584101,
(OWNER OF NEKRTC BUS NO KA-36/F-1623)
9. THE DIVISIONAL CONTROLLER,
NORTH EAST KARNATAKA ROAD TRANSPORT,
BALLARI DIVISION BALLARI-583102,
KARNATAKA STATE.
(EMPLOYER OF DECEASED DRIVER BY NAME
PRAVEEN YALLAPPA KABARALLI)
...RESPONDENTS
(BY SRI H.M. DHARIGOND, ADVOCATE FOR CAVEATOR/R1;
R2 AND R3 ARE MINORS REPRESENTED BY CAVEATOR/R1;
BY SRI H.M. DHARIGOND ADVOCATE FOR R4 AND R5;
R6 MINOR REPRESENTED BY R5;
BY SRI S.C. BHUTI, ADVOCATE FOR R8 AND R9)
THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173(1)
OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE
RECORDS AND HEAR THE PARTIES AND MODIFY THE
JUDGMENT AND AWARD DATED 14.03.2022 PASSED IN MVC
NO.474/2020 ON THE FILE OF THE IV ADDITIONAL DISTRICT
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V,
BELAGAVI, BY EXONERATING THE APPELLANT INSURANCE
COMPANY FROM THE LIABILITY AND BY REDUCING THE
COMPENSATION BY ACCEPTING THE GROUNDS MADE OUT IN
THE GROUNDS APPEAL BY ALLOWING THIS APPEAL WITH
COST IN THE ENDS. OF JUSTICE AND EQUITY.
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
IN MFA CROSS OBJ. NO. 100106 OF 2022
BETWEEN:
1. SMT. VASANTI W/O. PRAVEEN KABARALLI,
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI - 591126.
2. SHRAVAN S/O. PRAVEEN KABARALLI,
AGE: 10 YEARS, OCC: STUDENT,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI - 591126.
3. KHUSHI D/O. PRAVEEN KABARALLI,
AGE: 04 YEARS, OCC: STUDENT,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI-591126.
(APPELLANT NOS. 2 AND 3 SINCE MINORS,
REPRESENTED BY NATURAL GUARDIAN
THEIR MOTHER APPELLANT NO.1)
4. SHRI YALLAPPA BASAVREDDEPPA KABARALLI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI - 591126.
5. SMT. KRISHNAMMA W/O. YALLAPPA KABARALLI,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI - 591126.
6. SHRI SIDDU S/O. YALLAPPA KABARALLI,
AGE: 16 YEARS, OCC. STUDENT,
R/O: SALAPUR, TALUK: RAMADURG,
DISTRICT: BELAGAVI - 591126.
(APPELLANT NOS. 6 SINCE MINOR
REPRESENTED BY NATURAL GUARDIAN
HIS MOTHER APPELLANT NO.5)
...CROSS OBJECTORS
(BY SRI H.M. DHARIGOND., ADVOCATE)
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
AND:
1. THE MANAGING PARTNER TEAM THAI,
AGHIN ROAD WAYS, 5/93, KOLLUPALAYAM,
OPP. SANIYUR CHECK,
POST KARUMATHAMPATTI COIMBATORE,
TAMILNADU 641659.
2. THE MANAGER,
RELIANCE GENERAL INSURANCE CO.LTD.,
NEAR KOLHAPUR CIRCLE NEHRU NAGAR,
BELAGAVI - 590001.
3. THE MANAGING DIRECTOR,
NORTH EAST KARNATAKA ROAD
TRANSPORT CORPORATION,
SARIGE SADANA CENTRAL OFFICE,
GULBARGA, RAICHUR DIVISION,
RAICHUR 584101.
4. THE DIVISIONAL CONTROLLER,
NORTH EAST KARNATAKA ROAD
TRANSPORT CORPORATION,
BALLARI DIVISION,
BALALRI, BALLARI - 583102.
...RESPONDENTS
(BY SRI G.N. RAICHUR, ADVOCATE FOR R2;
BY SRI S.C. BHUTI, ADVOCATE FOR R3 AND R4;
NOTICE TO R1 IS DISPENSED WITH)
THIS CROSS OBJECTION IN MFA NO.102163/2021 FILED
UNDER ORDER 41 RULE 22 OF CPC., PRAYING TO ALLOW THE
CROSS OBJECTION AND MODIFY THE JUDGMENT AND AWARD
DATED 14.03.2022 PASSED IN MVC NO. 474/2020 ON THE
FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI, AND AWARD
REASONABLE COMPENSATION UNDER THE ALL PERMISSIBLE
HEADS.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
FINAL DISPOSAL, THIS DAY, BASAVARAJA, J., DELIVERED
THE FOLLOWING:
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NC: 2023:KHC-D:10488-DB
MFA No. 102163 of 2022
C/W MFA.CROB No. 100106 of 2022
JUDGMENT
Both the Miscellaneous First Appeal and MFA Cross- objections are preferred against the judgment and award dated 14th March, 2022 passed in MVC No.474 of 2020 on the file of IV District Judge and Motor Accident Claims Tribunal, Belgaum (for brevity, hereinafter referred to as the "Tribunal").
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.
3. Brief facts of the petition are that on 04th October, 2019, Praveen Kabaralli was traveling from Bengaluru to Siraguppa in KSRTC Bus bearing Registration No.KA-36/F-1623 along with conductor and passengers. He was driving the bus in a moderate speed and on the left side of the road by following all the traffic rules and when the bus reached near the spot of accident, i.e. near Heggere Gate, NH-150A Hiriyur- Challakere Road, within the limits of Challakere Taluk at about 4.00 am on 05th October, 2019, a Tata Truck bearing Registration No.TN-37/DX-6409 was parked/stationed by its driver negligently without following traffic rules or putting the indicator lights, and also without taking proper precaution -7- NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 before parking the vehicle on the middle of the road during night hours and thereby causing inconvenience to the other vehicles that travel on the road, etc. and as a result of this and also on the account of focus lights of oncoming vehicles, the said Praveen did not notice the parked/stationed truck on the middle of the vehicle and dashed to the right side hind portion of the said truck and caused the accident. Further, it is contended that due to the impact, the said Praveen has sustained grievous head injuries and other injuries to the vital parts of his body and died on the spot. There is no rash or negligent act on the part of the deceased Praveen in occurrence of mishap and thereafter, post-mortem of the deceased was conducted at Government Hospital, Challakere and the petitioners have performed last rites by spending Rs.50,000/- and spent Rs.25,000/- towards transportation of dead body. Further it is contended that the prior to the accident, the deceased was aged 36 years and was hale, healthy and active. The deceased was working as driver in NWKRTC, Bellary Division and was getting salary of Rs.36,000/- per month and used to main his family. The petitioners were solely depending upon he earning of the deceased and because of the untimely -8- NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 death of the bread-earner the family is put to hardship and are suffering both mentally and financially. Petitioner No.1 has lost her husband at her young age and petitioners 2 and 3 have lost their loving father and deprived of better future prospects. Further, it is contended that in the accident in question, Praveen sustained grievous head injuries and injuries all over the body and taking advantage of the same, the driver of the offending truck has managed to file false complaint on the driver of the deceased Praveen at the instance of the owner of the said Truck by suppressing the true fact and in collusion with Challakere Police and the complainant, in order to avoid his criminal prosecution and come over to Chitradurga Court often, has filed case against the deceased, without making proper enquiry and investigation, even though the said accident is caused due to sole negligence on the part of the driver of the truck who parked the truck in the middle of the National Highway without any indicators or taking proper precaution. It is further contended that the accident took place due to the sole negligence on the part of the driver of the truck. Thus the respondent No.1 being the owner and respondent No.2 being the insurer of the said truck are jointly and severally liable to -9- NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 pay compensation to the petitioners. On all these grounds sought for compensation.
4. In pursuance of summons respondent No.1 remained exparte and respondents 2 to 4 filed their written objections. The substance of objection of respondent No.2 is that the petition is bad for non-joinder of necessary parties. The deceased driver of the bus himself had dashed to the parked truck. It is further contended that the driver of the truck had no valid and effective driving licence as on the date of accident and thus there is violation of terms of policy. Petitioners have filed ECA No.46 of 2019 before the Principal Senior Civil Judge Bellary. Thus, the present petition is not maintainable and therefore, sought for dismissal of the claim petition.
5. Respondents 3 and 4 have filed common objections, admitting the accident and contended that the accident had occurred due to wrong parking of the truck by its driver and deceased met with an accident and died and there is no negligence on the part of the driver of the bus.
6. Based on pleadings, the Tribunal framed issues for its consideration. To prove the case of the petitioners one witness
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 was examined as PW1 and eight documents were marked as Exhibits P1 to P8 and on behalf of respondents one witness was examined as RW1 and two documents were marked as Exhibits R1 and R2.
7. Having heard the learned counsel for the parties and considering the material placed on record, allowed the claim petition in part and awarded compensation of Rs.50,42,120/- with interest at the rate of 6% per annum from the date of petition till realisation to be satisfied by respondents 1 and 2.
8. Being aggrieved by the impugned judgment and award Insurer has preferred MFA No.102163 of 2022 challenging on the ground of negligence, maintainability and quantum; and the claimants have preferred MFA Cross Objections No.100106 of 2022 seeking enhancement in compensation.
9. Learned counsel for the appellant insurance Company submits that the Tribunal has committed an error in saddling the liability on the appellant Insurance Company against the documentary evidence on record. It is to be noted that petitioners themselves produced Exhibit P1-complaint and Exhibit P2-First Information Report and Exhibit P7-charge
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 sheet. These documents substantiate that the accident was due to sole negligence on the part of the driver of the KSRTC bus. No independent witness have been examined as PW1 is not a proper witness to speak against the police records. The Charge sheet has not been challenged by the petitioners. These aspects are not at all properly discussed by the Tribunal. On all these grounds the Tribunal ought to have dismissed the petition as untenable. Accordingly, learned counsel prays for allowing the appeal.
10. On the other hand, learned counsel appearing for the claimants submits that the Tribunal, after considering the documentary and oral evidence on record, has given a finding as to liability of the respondents. He further submits that though the deceased was earning Rs.36,000/- per month, the Tribunal has taken the same at Rs.24,430/- per month which is an error. Further he submits that the compensation awarded by the Tribunal on conventional heads is also on the lower side and same are required to be modified. Hence, he prays for enhancement of compensation.
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022
11. Having heard the learned counsel for the parties and the following points would arise for our consideration in these appeals:
1. Whether the Insurance company has made out a ground to interfere with the impugned judgment and award as to the liability of the appellant insurance company?
2. Whether the appellants are entitled for enhancement of compensation as sought for?
3. What order or award?
12. Our answer for the above points are as under:
Point No.1: partly in the affirmative; Point No.2: partly in the affirmative; Point No.3: as per final order
13. We have given our anxious consideration for the arguments advanced by the learned counsel for the parties. Accident is not in dispute and the death of the driver of the KSRTC bus in the accident is also not in dispute. To substantiate the case of the petitioner, PW1 Smt. Vasanti Praveen Kabarali was examined and she has reiterated the submissions made in the claim petition and has produced documents as per Exhibits P1 to P8. Perusal of documentary
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 evidence makes it clear that on the basis of complaint filed by one Ramesh, Challakere police have registered Case in Crime No.304 of 2019 against the driver of the NWKRTC bus for the offence punishable under Section 297, 337, 304A of the Indian Penal Code. Thereafter, police have visited the spot, prepared spot panchanama in the presence of panchas as per Exhibit P3 and prepared rough sketch and obtained MV report as Exhibit P4 and have conducted inquest panchanama as per Exhibit P6, obtained Post-mortem report as per Exhibit P5 and recorded the statement of witnesses and submitted the abated charged sheet against the driver of the NWKRTC bus for the offence punishable under Sections 279, 337 and 304A of the Indian Penal Code as per Exhibit P7. During the course of cross- examination, PW1 has clearly stated admitted that the police have submitted abated charge against her husband in this accident wherein 25 inmates of the bus sustained injuries and three persons died. Further, she has clearly submitted that she or family members have not lodged any complaint against the driver of the truck. RW1-Smt. Sangeeta, Mohan, the Legal Retainer in respondent No.2-Insurance Company has deposed that the police have not filed chargesheet against the driver of
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 the truck either under the provisions of Indian Penal Code or under the provisions of Motor Vehicles Act, 1988. The alleged accident occurred due to the negligent act of the deceased driver of the NWKRTC bus himself and the driver the lorry has not at all contributed anything towards alleged accident. Hence, the petitioners cannot take aid of the provisions of Section 166 of Motor Vehicles Act, 1988. The petitioners have no locus to file present case against the respondents. The alleged accident took place due to sole rash and negligent driving of the driver of the NWKRTC bus and after detailed investigation, the police have charge sheeted the deceased driver of the offence punishable under Sections 279, 337 and 304A of Indian Penal Code. There is no rash and negligence on the part of the driver of the lorry. The police records produced by petitioners themselves make it clear that the lorry was stationed on the western edge of the tar road with indicator. The width of the tar road from the western edge is 24 feet. Therefore, there was sufficient space for the road users. Thus, the driver of the lorry was not negligent in parking the vehicle because there was sufficient road available for the other vehicles to move on without any hindrance. The lorry was
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 stationed on the western edge of the road due to some problem in the vehicle. The said truck was fully loaded with coal. The driver of the NWKRTC bus was driving his bus in a high speed, rash and negligent manner and dashed to the hind portion of the stationed truck, therefore alleged accident took place due to the negligent on the part of the deceased NWKRTC driver himself. Due impact, 25 inmates of the bus got injured and 3-4 passengers died. The inmates of the bus filed a complaint in which it is clearly stated that the alleged accident had taken place only due to the negligent act of the driver of the NWKRTC bus. During the course of cross-examination, RW1 has clearly admitted that she is not an eye-witness to the accident further she has clearly admitted that the accident took place on the national highway. Further, she has admitted that there is no place to park the vehicle at the place of accident. It is further admitted that as per Exhibit P3-Sketch, the width of the road is 24 feet. The lorry is a sixteen-wheel heavy vehicle and the width of the vehicle is about 12 feet and they have not produced any document before the police or court to show that the vehicle was stationed due to mechanical defect. She has also clearly admitted that in Exhibit P4 IMV report, it is not
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 mentioned that the lorry was parked due to mechanical defect. Further, she has admitted that the insurance policy of the lorry was in force at the time accident. A careful examination of the contents of Exhibit P3-spot panchanama, reveals that width of the road at the place of accident is 24 feet and it is double road. There is a five feet width kachha road towards both sides of the road and the lorry was loaded with coal. The said mahazar does not indicate that the driver of the lorry has taken all precautionary measures under Rule 15 of the Road Regulations, 1989 and also the provisions of Karnataka Road Traffic Act, 1961 and Karnataka Road Traffic Rules, 1979 and Section 122 of Motor Vehicles Act, 1988 and also Rule 28 of Motor Vehicle (Driving) Regulations, 2017. The driver of the lorry is also not examined to show that he has followed the provisions of Motor Vehicles Act, 1988 and abovesaid Rules and Regulations before stationing the lorry on the road. It is evident from Motor Vehicles report that there was no mechanical defect in the stationed lorry. The driver/owner of the lorry are not examined before the Tribunal to show as to the compliance of the mandatory provisions of Motor Vehicles Act, 1988 and abovesaid Rules and Regulations before parking the lorry on
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 the national highway. The Investigating Officer has also not properly investigated the case in this regard. The charge sheet submitted by the Investigating Officer also does not reflect as to the compliance of abovesaid mandatory provisions by the driver of the lorry. Considering the evidence placed by both the parties and also admissions made by PW1 and RW1, we are of the considered view that there is a contributory negligence on the part of the driver of the lorry, who has stationed the vehicle without following the abovesaid rules and regulations. Mere filing FIR and charge sheet are not sufficient to come to the conclusion that the accident occurred due to the sole negligence on the part of the deceased bus driver. The Tribunal has to assess the evidence independently in accordance with law and facts. But in the case on hand, the Tribunal has totally ignored the evidence of RW1 admissions made by PW1 and also aforesaid Motor Vehicle Act and Rules. On re-appreciation and re-examination of the evidence on record, we are of the opinion that the accident took place due to rash and negligent act on the part of the deceased driver of NWKRTC bus and also the driver of the lorry who has stationed the same on the national highway. Considering the facts and
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 circumstances of the case, it is just and proper to fix the negligence on the driver of the NWKRTC bus and the driver of the lorry in the ratio of 50:50. Accordingly, we answer point No.1 partly in the affirmative.
Regarding Point No.2:
14. As regards quantum of compensation is concerned, the Tribunal at paragraphs 33 to 40 of the judgment has observed as under:
"(33) On this issue, PW1- Smt. Vasanti
W/o.Praveen Kabaralli being the petitioner-1 mainly
deposes before the Tribunal that her husband Praveen sustained fatal injuries in the road traffic accident and succumbed to such injuries.
(34) She further deposed that at the time of death, her husband was aged about 36 years was serving as driver in NEKRTC and thereby earning Rs.36,000/-per month and maintaining the petitioners.
(35) P.W.1 in her chief examination has produced Ex.P.8 salary certificate annexed with service particulars of the deceased, which is issued by Divisional Controller, NEKRTC, Ballari Division, Ballari. It is undisputed fact that deceased was serving as driver in NEKRTC, which is further fortified by Ex.P.8 Salary Certificate.
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 (36) As far as age of the victim is concerned, in the service particulars annexed to Ex.P.8 reveals the date of birth of victim is shown as 22.7.1983. The accident in question had occurred 6.10.2019. Thus, it can be safely held that, on the date of accident, the deceased was aged 36 years, 2 months, 15 days and his running age was 37 years. As per Sarala Verma's case, multiplier applicable to this case is 15 for the age group 35 to 40 years.
(37) Further, Ex.P.8 salary certificate indicates the salary income of the deceased as Rs.24,430/- per month and accordingly, his income is considered as Rs.24,430/- per month.
(38) In a decision of the Constitutional Bench in National Insurance Company Ltd. V/s Pranay Sethi and others ((2017) 16 SCC 680), the Hon'ble Apex Court held-" an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made" In this case, as discussed above, this Tribunal has considered the actual income of deceased at Rs.24,430/-per month. Thus, future prospects will come at Rs.12,215/- [50% of Rs.24,430/-]. Now, the total income comes to Rs.36,645/- per month (Rs.24,430+Rs.12,215).
(39) It is pertinent to note that the deceased left behind his wife, children and parents as well as his younger brother. However, as the parents of the
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 deceased are alive, the petitioner no.6 who is younger brother of the victim cannot be considered as a dependent on the deceased. Thus, there are as many as 5 dependents. Hence, in such circumstances, 1/4th of income is to be deducted towards his personal and living expenses. In the said circumstances, the income of deceased Praveen is taken as Rs.36,645/- per month and out of that Rs.9,161/- has to be deducted towards personal and living expenses of the deceased and Rs.27,484/- per month would be the loss of dependency to the petitioners. Therefore, Applying 15 - multiplier it will come to Rs.27,484 x 12 x 15 = Rs.49,47,120/- which is loss of income/dependency including loss of future prospects.
(40) In addition to the above, the petitioners are entitled also entitled for compensation of Rs.15,000/- towards loss of estate and Rs.40,000/-towards loss of consortium. Considering the facts and circumstances of the case, the petitioners are also entitled for compensation of Rs.15,000/- towards the transportation of dead body, funeral and other obsequies. Having regard to the facts & circumstances of the case and in view of the judgment of the Hon'ble High Court of Karnataka, Bengaluru, in M.F.A. No.7737/2013 (MV) dated 25th June 2014 (Smt. Padmavathi & Others..
K.Ravichandran & Another), the petitioners are entitled for a sum of Rs.25,000/- towards loss of love and affection."
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022
15. The Tribunal has rightly considered the salary of the deceased as per Salary Certificate Exhibit P8 and also considering the future prospects as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, awarded compensation of Rs.49,47,120/- under the head loss of dependency, which is correct. Keeping in mind the decisions of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, in the case of PRANAY SETHI (supra) and in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130, it is just and proper to award the following compensation:
Sl.No. Head Amount (Rs.)
1. Loss of dependency 49,47,120.00
2. Towards consortium (Rs.44,000 x 4) 1,76,000.00
3. Towards loss of estate 16,500.00
4. Towards funeral expenses 16,500.00
Total 51,56,120.00
16. While answering point No.1, this court has held that there is negligence on the part of the driver of the bus and also the driver of lorry. Since the accident occurred on account of
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022 contributory negligence on the part of drivers of both the vehicles, it is just and proper to fix the liability in the ratio of 50:50 on the Insurance Company and NWKRTC. Accordingly, we answer point No.2, partly in the affirmative. Regarding Point No.3:
17. For the aforesaid reasons and discussions, we proceed to pass the following:
1. Miscellaneous First Appeal No.102163 of 2022 preferred by the Insurer is allowed in part;
2. MFA Cross-objections No.100106 of 2022 preferred by the claimants is allowed in part;
3. Impugned judgment and award dated 14th March, 2022 passed in MVC No.474 of 2010 by the Tribunal is modified by awarding compensation of Rs.51,56,120/- as against Rs.50,42,120/-
awarded by the Tribunal;
4. The Insurance Company and the NWKRTC shall deposit the compensation amount in the ratio of 50:50 within sixty days from the date of receipt of certified copy of this judgment;
5. Amount if any in deposit, shall be transmitted to the trial Court for onward disbursal to the claimants;
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NC: 2023:KHC-D:10488-DB MFA No. 102163 of 2022 C/W MFA.CROB No. 100106 of 2022
6. The apportionment and disbursement of the compensation amount shall be as per the award of the Tribunal;
7. Registry to award accordingly;
8. Send the copy of this judgment and the trial Court records to the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE RH LIST NO.: 1 SL NO.: 31