Karnataka High Court
The Divisional Controller vs Ramzan Bi W/O. Late Shahabuddin on 24 November, 2020
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.100152/2019 C/W. MFA NO.103750/2018(MV)
IN MFA NO.100152/2019
BETWEEN
1. RAMZAN BI
W/O. LATE SHAHABUDDIN EKLASPUR
AGE:38 YEARS, OCC:HOUSEHOLD,
2. ANJUM
D/O. LATE SHAHABUDDIN EKLASPUR
AGE:17 YEARS, MINOR,
3. SUHAIL
S/O. LATE SHAHABUDDIN EKLASPUR
AGE:14 YEARS, MINOR,
4. MUSTAF
S/O. ALTE SHAHABUDDIN EKLASPUR
AGE:11 YEARS, MINOR,
SINCE APPELLANT NOS.2 TO 4 ARE MINORS
U/G OF THEIR NATURAL GUARDIAN-MOTHER
APPELLANT NO.1 RAMZANBI,
ALL ARE RESIDENTS OF DEVARAJ
URS COLONY, KOPPAL, TQ:KOPPAL,
DIST:KOPPAL-583201.
...APPELLANTS
(BY SRI. M AMAREGOUDA, ADV.)
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AND
1. KALLAYYA S/O. SHEKHARAYYA
AGE:40 YEARS, OCC:DRIVER OF KSRTC,
BUS NO. KA-37/F-432,
R/O VIDYA NAGAR, KUKANUR,
TQ:YELBURGA,
DIST KOPPAL-583236.
2. THE DIVISIONAL CONTROLLER
OWNER CUM INSURER OF NEKRTC
BUS NO. KA-37/F-4332,
NEKRTC, KOPPAL DIVISION,
KOPPAL, DIST:KOPPAL-583201.
...RESPONDENTS
(BY SRI. S.C. BHUTI, ADV. FOR R2,
SERVICE OF NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 16.07.2018, PASSED IN MVC NO.65/2017, ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND ADDL.MACT,
KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.103750/2018
BETWEEN
THE DIVISIONAL CONTROLLER
OWNER CUM INSURER OF NEKRTC
BUS NO. KA-37/F-4332, NEKRTC,
KOPPAL DIVISION, KOPPAL,
DIST:KOPPAL. REPRESENTED BY
CHIEF LAW OFFICER.
...APPELLANT
(BY SRI. S C BHUTI, ADV.)
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AND
1. RAMZAN BI
W/O. LATE SHAHABUDDIN
EKLASPUR, AGE:37 YEARS,
OCC:HOUSEHOLD,
2. ANJUM
D/O. LATE SHAHABUDDIN EKLASPUR
AGE : 16 YEARS, MINOR,
3. SUHAIL
S/O. LATE SHAHABUDDIN EKLASPUR
AGE: 13 YEARS, MINOR,
4. MUSTAF
S/O. LATE SHAHABUDDIN EKLASPUR
AGE: 10 YEARS, MINOR,
PETITIONERS/RESPONDENT NO.2 TO 4 ARE
MINORS U/G OF THEIR NATURAL
GUARDIAN-MOTHER PETITIONER /
RESPONDENT NO.1 RAMZANBI.
ALL ARE R/O.DEVARAJ URS COLONY,
KOPPAL, TQ-KOPPAL,
DIST:KOPPAL-583231.
5. KALLAYYA S/O. SHEKHARAYYA
AGE:39 YERS, OCC:DRIVER OF KSRTC
BUS NO. KA-37/F-4332,
R/O. VIDYA NAGAR, KUKANUR,
TQ:YELBURGA-583236.
...RESPONDENTS
(BY SRI. M. AMAREGOUDA, ADV. R1 TO R4,
R2 TO R4 ARE MINORS R/BY R1, R5-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 16.07.2018, PASSED IN MVC NO.65/2017, ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND MEMBER, ADDL.
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MACT, KOPPAL, AWARDING COMPENSATION OF
RS.14,05,800/- WITH INTEREST AT 7% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS ARE COMING ON FOR ORDERS,
THIS DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for orders today, with the consent of learned counsels for the parties, matter is taken up for final disposal.
2. The claimants in MFA No.100152/2019 and KSRTC in MFA No.103750/2018 are before this court being aggrieved by the judgment and award dated 16.07.2018 in MVC No.65/2017 on the file of the Civil Judge (Sr.Dn.) and Additional MACT, Koppal questioning the validity of the judgment.
3. The brief facts, which are necessary for disposal of the appeal are as under:
A claim petition came to be filed under Section 166 of M.V. Act contending that on 01.02.2017 at about 8.40 a.m. one Anwar Ali was riding the bicycle on the -5- left side of the road in Bannikatti to attend his coolie work on Hosapete-Gadag NH-63 road. When he came near B.E.O. office, a KSRTC bus bearing No.KA-37/F- 432 came from Hosapete side in rash and negligent manner and dashed to the bicycle from the hind side, resulting in accident, whereby said Anwar Ali sustained severe crush injuries to his trunk on both thighs and other parts of the body. Immediately he was shifted to Government hospital, Koppal and succumbed to the injuries in the hospital.
4. It is further contended that he was aged about 18 years and was indulged in the granite and tiles fitting work in Sharada Granite works and was also doing milk vending business and had monthly income of Rs.12,000/-. It is further contended that the whole family of the claimants were dependant on the income of the deceased and they have lost their bread winner of -6- the family and sought for awarding suitable compensation.
5. In pursuance of the notice issued, respondents No.1 and 2 appeared before the Tribunal with respective Advocates and respondent No.2-KSRTC filed written statement denying the petition averments in toto.
6. Based on the rival contentions, the Tribunal raised the following issues:
1. Whether the petitioner proves that deceased Anwar Ali died in the motor vehicle accident that occurred on 01-02-
2017 at about 8:40 a.m., on Gadag -
Hosapeter NH-63 Road, Near B.E.O Office, Koppal, due to rash and negligent driving of NEKRTC bearing No.KA-37/F-432 by respondent No.1?
2. Whether the respondent No.2 is proves that he has not liable to pay the -7- compensation if any awarded as prayed for ?
3. Whether the petitioners are entitled for compensation? If so how much and, from whom? "
4. What Order or award?
7. In order to prove the issues, claimant No.1 got herself examined as PW1 and another eye witness by name Ravi got examined as PW2. On behalf of KSRTC one Kallayya got examined as RW1 relied on documentary evidence which were exhibited and marked as Exs.P.1 to P9 and on cumulative oral and documentary evidence on record, tribunal allowed the petition in a sum of Rs.14,05,800/- with interest at 7% p.a. from the date of petition till realization.
8. It is that judgment which is under challenge in both these appeals.
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9. While claimants have sought for enhancement of compensation, KSRTC is also questioning the contributory negligence on the part of the deceased and quantum of compensation.
10. Learned counsel appearing for the claimants Sri. M. Amaregouda vehemently contended that the tribunal grossly erred in taking income at Rs.6,000/-, whereas this court and Lok Adalaths would normally assess the notional income at Rs.10,250/- for the accidental claims of the year 2017 and sought for enhancement on that score.
11. He also contended that the principles of law enunciated as per decision of Pranay Sethi's deceased is entitled to addition of 40% on the notional income and sought for allowing the appeal. He further argued that on the conventional heads tribunal did not grant proper compensation and sought for enhancement. -9-
12. Per contra, learned counsel for the - respondent-KSRTC contended that the tribunal did not taken into consideration the oral evidence placed by the driver of the offending bus and should have taken contributory negligence factor while assessing the compensation. He also argued that the contributory negligence aspect is to be properly considered by this court and quantum of compensation is to be reassessed and sought for allowing the appeal.
13. In view of the rival contentions of the parties, the following points would arise for consideration:
i) Whether the quantum of
compensation adjudged by the
tribunal is just and proper?
ii) Whether the KSRTC makes out a case of contributory negligence attributable to deceased so as to reassess the compensation ?
14. The answer to the above point No.1 in the negative and point No.2 partly in the affirmative for the following:
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REASONS
15. The accidental death of Anwar Ali involving KSRTC bus bearing No.KA-37/F-432 on 01.02.2017 is not in dispute. Admittedly, charge sheet came to be filed against the driver of the offending bus. Copy of the sketch made available by Sri. S.C. Bhuti, on perusal would clearly establish that there could not be any contributory negligence on the part of the deceased. The contents of panchanama would also clearly establish that the there cannot be any contributory negligence on the part of the deceased. As such, the argument put forth on behalf of KSRTC that the rider of the bicycle is also responsible for accident cannot be countenanced in law.
16. Admittedly, the tribunal has taken into consideration the income at Rs.6,000/- as notional income in the absence of any positive proof of income. -11-
17. This court and Lok Adalaths would usually assess the notional income for the accidental claim of the year 2017 at Rs.10,250/- per month.
18. As per decision of Hon'ble Apex Court in the case of Pranay Sethi supra deceased being aged 18 years is entitled for 40% addition on the assessed income. The deceased being bachelor 50% is to deducted as against 1/4th as is deducted by the tribunal. Having regard to the age of the deceased being 18 years, tribunal has adopted proper multiplier. Accordingly, the quantum of compensation is to be adjudged afresh.
19. Having regard to the fact that deceased was aged 18 years, the income has to be taken at Rs.10,250/- and as per decision of Pranay Sethi's, the claimants are entitled for addition of 40% on the assessed income. Therefore, the claimants are entitled -12- for compensation on the head of loss of dependency as under :
10,250/- + 40% = 4100 +10250=14,350/50%=7175 7175X12X18=15,49,800/-
20. On conventional heads even though he was bachelor, having regard to the siblings this court is of the considered opinion that awarding Rs.70,000/- would be justifiable in the case on hand. Therefore, the claimants are entitled for compensation on the following heads.
1 Loss of dependency 15,49,800 2 Conventional head 70,000 3 LESS : interim 15,000 compensation already paid TOTAL 16,04,800
21. Trial court has ordered 7% interest on the award amount. Having regard to the prevailing bank rate and also having regard to the fact that this court enhanced the compensation payable to the claimants, -13- ordering interest at 6% p.a. would meets the ends of justice. Accordingly, following order is passed:
ORDER Appeal filed by the claimant in MFA No.100152/2019 and appeal filed by the KSRTC in MFA No.103750/2018 are allowed in part.
In modification of the award of compensation a sum of Rs.14,05,800/- the claimants are entitled to a total compensation of Rs.16,04,800/- with interest 6% p.a. from the date of petition till realization.
The adjudged compensation is to be paid by the KSRTC within six weeks from the date of receipt of copy of this order.
Amount in deposit, is ordered to be transmitted to the tribunal. Balance amount is to be deposited by the KSRTC.
Draw modified award accordingly.
SD/-
JUDGE MNS/