Karnataka High Court
The Divisional Controller vs Balappa S/O Mallappa Torase on 17 November, 2021
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 17 T H DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.101999/2015
C/W M.F.A.No.100664/2015 (MV)
IN MFA No.101999/2015
BETWEEN
1. BALAPPA MALLAPPA TORASE,
AGE: 57 YEARS , OCC: NIL,
R/O NASALA PUR, T AL: RAIBAG,
DISTRICT: BELA GAVI.
2. SMT.JAYASHRI,
W/O BA LAPPA T ORASE,
AGE: 44 YEARS , OCC: HOUS E WIFE,
R/O NASALA PUR, T AL: RAIBAG,
DISTRICT: BELA GAVI.
... APPELLANTS
(BY SRI BAHUBALI N.KANABARGI, AD VOCATE)
AND
1. SHIVANAND MURUGAYYA MATHAPATI,
AGE: MAJOR, OCC: DRIVER,
R/O KSRTC DEPOT RAIBAG,
TAL: RAIBAG, DIST: BELA GAVI.
2. THE DIVISIONAL CONTROLLER,
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION
THROUGH ITS DIVISIONAL OFFICE,
CHIKODI, TQ: CHI KODI,
2
DISTRICT: BELA GAVI.
... RES PONDENTS
(BY SRI SAMEER G.KOLLI, ADVOCATE FOR R1;
SRI S .C.BHUTI, A DVOCATE FOR R2)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 05.08.2014 PA SSED IN MVC
NO.671/ 2013 ON THE FILE OF THE SENIOR CIVI L J UDGE
AND M.A.C.T., RAIBAG, PARTLY ALLOWING T HE CLAIM
PETITION FOR COMPENSATI ON AND SEEKING
ENHANCEMENT OF COMPENSATION .
IN MFA No.100664/2015
BETWEEN
THE DIVISIONAL CONTROLLER,
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION,
CHIKKODI DIVISI ON, CHIKKODI ,
REP.BY CHIEF LAW OFFICER,
NWKRTC, GOKUL ROAD, HUBBALLI ,
DISTRICT: DHARW AD-580030.
... APPELLANT
(BY SRI S .C.BHUTI, ADV OCATE)
AND
1. BALAPPA S/ O MALLAPPA TORASE,
AGE: 57 YEARS , OCC: NIL,
R/O NASALA PUR, T AL: RAIBAG,
DISTRICT: BELA GAVI.
2. SMT.JAYASHRI W/ O BA LAPPA T ORAS E,
AGE: 44 YEARS , OCC: HOUS E WIFE,
R/O NASALA PUR, T AL: RAIBAG,
DISTRICT: BELA GAVI.
3. SHIVANAND,
S/O MURUGAYYA MATHAPATI,
3
AGE: 55 YEARS , OCC: DRIVER,
KSRTC DEPOT , RAI BAG,
DIST: BELA GAVI.
... RES PONDENTS
(BY SRI BAHUBALI N.KANABARGI, AD VOCATE FOR R1 & R2;
SRI SAMEER G.KOLLI, ADVOCATE F OR R3)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 05.08.2014 PA SSED IN MVC
NO.671/ 2013 ON THE FILE OF THE SENIOR CIVI L J UDGE
AND M.A.C.T., RAIBAG, AWARDIN G COMPENSATION OF
RS.14,03,000/- A LONG WITH INTEREST AT 6% P.A . FROM
THE DATE OF FI LING OF PETITION TILL THE DATE OF
DEPOSIT .
THESE APPEA LS COMING ON F OR HEARING ON I .A .
THIS DAY, T HE COURT, DELIVERED T HE F OLLOWING:
JUDGMENT
Challenging the judgment and award dated 05.08.2014 passed by Senior Civil Judge and M.A.C.T., Raibag (for short, 'the Tribunal') in MVC No.671/2013, these appeals are filed.
2. For the sake of convenience, parties will hereinafter be referred to as per their respective ranks before the tribunal.
4
3. Brief facts as stated are that on 30.08.2012, Jyotiba and his friend were riding motorcycle bearing registration No.KA-23/EC-8288 on Raibag-Ankali road. At about 8.00 p.m. when they were near land of Annasa Magadum, a bus belonging to NWKRTC bus bearing registration No.KA-23/F-580 came from opposite direction in a rash and negligent manner and dashed to motorcycle. In the accident, Jyotiba sustained grievous injuries and was shifted to hospital, but he died during treatment. Claiming compensation for his untimely death, his parents filed claim petition under Section 166 of Motor Vehicles Act, 1988 (for short, 'M.V.Act') against driver and owner of bus i.e. NWKRTC.
4. On service of notice, driver filed objections denying accident due to his negligence. It was alleged that deceased himself caused accident in his drunken stupor. Respondents filed objections. It was also contended that there was a speed breaker of 2 feet in 5 height from road level and motorcycle jumped over speed breaker and dashed to bus above its head light. Therefore, there was no negligence of bus driver.
5. Based on pleadings, Tribunal framed following issues:
1. Whether petitioners prove that due to the rash and negligent driving of KSRTC bus bearing No.KA-23/F-580 and driven by its driver on Raibag-Ankali road near Nasalapur village and caused to the death of deceased Jotiba s/o Balappa Torase on 30.08.2012 at about 2000 hours?
2. Whether petitioners are entitled for compensation? If so, from whom and what extent?
3. What order or award?
6. In order to establish their case, claimant No.1 examined as PW1. They also examined one Sri Abdul Ibrahim Tambat as PW2. Exhibits P1 to P8 were 6 marked. On behalf of respondents, two witnesses were examined. No exhibits were marked.
7. On consideration, Tribunal answered issue no.1 in the affirmative, issue no.2 partly in the affirmative and issue no.3 by assessing compensation of Rs.14,03,000/- and holding respondent-corporation liable to pay the same. Aggrieved by the award, corporation is in appeal.
8. Heard learned counsel for appellants and respondents. Perused impugned judgment and award.
9. Sri S.C.Bhuti, learned counsel for appellant in MFA No.100664/2015 submitted that impugned award passed by Tribunal was contrary to facts and evidence on record. It was specifically submitted that though as per spot panchanama, accident occurred on left side of road, based only on complaint, FIR and charge sheet, tribunal apportioned entire contributory upon driver of bus. Even on quantum, it was submitted that Tribunal erred in adding 50% to income of 7 deceased towards future prospects. Even application of multiplier of '19' was unjustified. It was also contended that without any adequate evidence, Tribunal erred in considering monthly income of deceased at Rs.8,000/-. On above grounds, learned counsel sought for allowing appeal filed by NWKRTC and dismissal of claimants' appeal.
10. On the other hand, Sri Bahubali N.Kanabargi, learned counsel for claimants-appellants in MFA No.101999/2015 contended that version of bus driver that there was a speed breaker of more than 2 feet in height and 2 feet in width on road and motorcyclist while traversing same, lost control over motorcycle, jumped and dashed to bus above head light was not substantiated by any evidence. Even allegation that deceased had consumed alcohol was unsubstantiated. Therefore, taking into account the charge sheet, Tribunal rightly held negligence against bus driver. On quantum of compensation, it was submitted that PW2, 8 employer of deceased was examined. He deposed that deceased was earning Rs.10,000/- per month. But took monthly income of deceased only at Rs.8,000/-. Learned counsel further submitted that award under conventional heads also was inadequate and sought enhancement.
11. From above submission, occurrence of accident and death of Jyotiba in the said accident is not in dispute. Tribunal held the bus driver solely negligent in causing accident and assessed and awarded sum to claimants. Corporation is in appeal both on findings on negligence as well as quantum of compensation, while claimants are in appeal seeking for enhancement of compensation. Therefore, points that arise for consideration in these appeals are:
1. Whether finding of Tribunal on negligence is justified?
2. Whether compensation awarded by Tribunal calls for modification as sought for?9
12. In order to establish that accident was due to rash and negligent driving of bus by its driver, claimants produced complaint, FIR, Motor Vehicle Inspector's report, panchanama and charge sheet marked as Exs.P1 to P3, P5 and P6 respectively. Complainant is father of deceased. Though complaint is filed against bus driver, father of deceased is not an eyewitness to accident. From Ex.P3, damages found on respective vehicles are as follows:
"Damages found at the time of inspection.
I) KA-23/F-580 (Bus)
1) Front right side HL, indicator broken,
bumper, shape, wheel mudguard dented.
II) KA-23/EC-8288 (Motorcycle)
1) Front HL, assembly, right indicator,
registration mark, mudguard broken, both
shock absorber steering fork damaged,
handle bent."
13. Spot panchanama is marked as Ex.P5. On perusal of the same, it is seen that road on which 10 accident occurred runs from north to south and bus was proceeding from south to north, while motorcycle was proceeding from north to south. The accident spo t is shown at a distance of 4 feet to the east from western edge of tar road. Width of tar road is 20 feet. As bus was moving from south to north, accident spot would be clearly on its proper side of road. Motorcyclist came on wrong side and dashed against bus. Though there is no evidence to substantiate contention of respondents that there was a speed breaker of more than 2 feet height due to which motorcyclist jumped over the same and dashed against bus, evidence on record as regards accident spot and lack of any explanation for presence of motorcycle on wrong side of road, the finding of Tribunal regarding negligence would be perverse. On re-consideration of evidence, keeping in mind that corporation bus was a heavy passenger vehicle, and as per deposition of RW1 and RW2, the accident spot was preceded by a curve, it is felt that ends of justice would be met if an extent o f 11 25% contributory negligence is apportioned as against deceased and 75% as against corporation bus driver. Point no.1 is answered accordingly.
14. Insofar as point no.2 on quantum of compensation, claimants have stated that deceased was working as an agriculturist earning more than Rs.1,00,000/- per annum and also was employed by PW2 in his copper pot making factory. However, absolutely no records of employment are produced. Though PW2 has been examined and it is noted by Tribunal that PW2 produced notarized copy of registration of his small scale industry, which are not marked. In any case, they would not establish employment of deceased. In the absence of any evidence to establish employment, Tribunal could not have considered income from employment. Accident occurred during the year 2012. As per norms adopted by the Karnataka Legal Services Authority for settlement of cases before Lok Adalath, notional 12 income for year 2012 would be Rs.6,500/-.Same has to be considered. Deceased admittedly was a bachelor aged 19 years. Claimants are parents. As per decision of Hon'ble Supreme in National Insurance Company Limited V/s Pranay Sethi and others reported in AIR 2017 Supreme Court 5157, multiplier applicable would be '19', future prospects to be added would be 40% and deduction towards personal expenses has to be ½. Addition of 50% towards future prospects and application of '19' multiplier by Tribunal would be contrary to law. Same are accordingly modified. Thus, compensation towards loss of dependency would be Rs.6,500 + 40% - ½ x 12 x 18 = Rs.9,82,800/-. Claimants are parents, as per decision of Hon'ble Supreme Court in United India Insurance Company Limited V/s Satinder Kaur and others reported in 2020 SCC online 410, they would be entitled to compensation of Rs.40,000/- each towards loss of filial consortium. They would also be entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- 13 towards funeral expenses. Since more than three years have lapsed after rendering the decision in Pranay Sethi (supra), 10% has to be added towards award under conventional heads i.e., a sum of Rs.11,000/- i.e. claimants would be entitled for total compensation under conventional heads at Rs.1,21,000/-. Thus, total compensation would be Rs.12,13,800/- as against Rs.14,03,000/- awarded by Tribunal. Point no.2 answered accordingly.
15. In the result, I pass the following:
ORDER
i) MFA No.101999/2015 filed by claimants is dismissed.
ii) MFA No.100664/2015 is allowed in part.
Compensation determined by Tribunal is reduced from Rs.14,03,000/- to Rs.12,13,800/-.
iii) Corporation is held liable to the extent of 75% of the same i.e. a sum of Rs.9,10,350/-. 14
iv) Claimants would be entitled to interest at the rate of 6% on Rs.9,10,350/- from date of petition till deposit.
v) Corporation is directed to deposit balance compensation before Tribunal within three months from date of receipt of certified copy of this order.
vi) On deposit, 75% of compensation is apportioned in favour of claimant No.2, mother of deceased. Remaining 25% is apportioned in favour of claimant No.1, father of deceased. Entire award amount in favour of claimant No.1 is ordered to be released. 50% of amount apportioned in favour of claimant No.2 is ordered to be kept in fixed deposit initially for a period of three years.
vii) Amount in deposit is ordered to be transmitted to the Tribunal for payment.
Sd/-
JUDGE CLK