Karnataka High Court
The Divisional Controller Nekrtc ... vs Mumtaj @ Mumtaj Parveen W/O Late ... on 4 February, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4th DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.No.201475/2015 (MV)
BETWEEN:
The Divisional Controller
NEKRTC, Raichur,
Division Raichur-584101. ... Appellant
(By Sri. A M Patil, Advocate )
AND:
1. Mumtaj @ Mumtaj Parveen
W/o Late Mahebood
Age: 35 years
Occ: Household
2. Yasmen D/o late Mahebood
Age: 18 years, Occ: Student
3. Md. Sohail @ Sohail S/o late Mahebood
Age 16 years Occ: Student
All are R/o Raghavendra colony
Deosugur village Tq. Dist: Raichur
At post deosugur Tq. Dist: Raichur-584101.
... Respondents
(By Sri Basavaraj R Math, Advocate for R1 & R2
R3 is minor reptd. by R1)
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This M.F.A. is filed under Section 173 (1) of the
M.V.Act praying to set aside the judgment and award
dated 25.05.2015 passed by the II Addl. District and
Sessions Judge and member MACT, Raichur in MVC No.
634/2014 or may be pleased to modify the same in
accordance of law in the interest of justice and equity.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This appeal by the NEKRTC is directed against the impugned judgment and award dated 25.05.2015 passed in MVC No.634/2014, whereby the Tribunal awarded compensation in a sum of Rs.10,21,000/- with interest at 6% p.a. in favour of the claimants who are the wife, children of the deceased late Maheboob who died in a fatal road accident that occurred on 19.08.2014.
2. Though the matter is listed for admission, with the consent of learned counsel for both sides, the same is taken up for final disposal.
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3. I have heard the learned counsel for appellant- NEKRTC as well as the learned counsel for claimants.
4. The learned counsel for appellant-Corporation submits that the Tribunal committed an error in not deducting a sum of Rs.50,000/- paid by the appellant to the claimants as Ex-gratia amount after the accident. It is therefore contended that by deducting the said amount of Rs.50,000/- paid towards ex-gratia, the compensation awarded by the Tribunal deserves to be reduced.
5. Per contra, learned counsel for the claimants would support the impugned judgment and award.
6. While dealing with the issue with regard to the deduction of Rs.50,000/- paid by the appellant to the claimants by way of Ex-gratia amount, the Tribunal held at paragraphs 17 and 18 of the impugned judgment and award is as under:-
"17. Regarding the liability is concerned, as already held above, all the police papers and evidence of P.W.1 clearly speaks about the rash 4 and negligent driving of the Bus by the respondent No.1 only But, the respondent No.2 though field W.S. but neither adduced any oral evidence nor produced any documentary evidence to prove the W.S. contents. Hence, the respondent No.2 being the Insurance of the Bus is liable to pay entire compensation to the claimants. While arguing the case, the counsel for the respondent No.2 vehemently argued that the respondent No.2 has been already paid interim compensation of Rs. 50,000/- and requested the court to deduct the same. Nodoubt, the claimants not disputed having receipt of the 50,000/- amount. But the claimant contended it is paid by the KSRTC ex-gratia amount as per the fare collected by them by traveling deceased. In support of their contention he relied upon un-reported decision of our Hon'ble High Court of Karnataka reported in MFA No.1692/2012 (MV) dated: 22.04.2013 in the case of United India Insurance Company Ltd., Vs. Smt. Velengini @ Velangani and other wherein in Parts No.4 to 6 the judgment of our Hon'ble High Court of Karnataka held it reads as follow:
It is not in dispute that the fifth respondent- KSRTC is the registered owner of bus involved in the accident and it was insured with appellant - Insurance company. The KSRTC has paid a sum of Rs.50,000/- as ex-gratia payment immediately 5 after the accident. It was an act of grace. Therefore it should not have been deducted from compensation awarded to claimants. Similarly the insurance company should not have been directed to pay the same to KSRTC.
Shri. Nagaraj, learned counsel for the KSRTC would submit KSRTC had paid a sum of Rs. 50,000/- as ex-gratia to the claimants which was a benefit that had accrued to claimants due to accident.
I am not persuaded to accept this submission. The state owned corporation had paid a sum of Rs. 50,000/- as ex-gratia to the claimants who were in state of distress having lost bread winner of the family. Any amount paid in grace cannot be taken the consideration while computing compensation vis-à-vis liability of parties. Therefore this submission cannot be accepted. The approach of the Tribunal is erroneous Therefore I hold that the appellant Insurance Company is liable to pay compensation of Rs. 7,85,000/- with interest @ 6% per annum from the date of petition till realisation to the claimants
18. The Hon'ble High Court clearly held any amount paid as ex-gratia cannot be taken into consideration while computing the compensation vis-à-vis liability of parties. Therefore I declined to 6 accept the submission made by the respondent No. 2 counsel. It is not the proper case to deduct the amount paid by the KSRTC as it is a ex-gratia amount. The respondent No.2 is liable to pay the award amount of Rs. 10,21,000/- with interest upto date. Hence, I answer Issue No.2 held partly in the Affirmative".
7. A perusal of the paragraphs 17 and 18 of the impugned judgment and award will indicate that the Tribunal has taken into account the settled legal position with regard to the reduction of payment made by way of ex-gratia to the claimant and has arrived at a conclusion that the same cannot be deducted out of the total compensation.
8. After re-appreciating the entire material on record, I am of the considered opinion that the findings recorded by the Tribunal are neither perverse nor capricious so as to warrant interference by this Court in the present appeal. Accordingly, I do not find any merit in the appeal and the same is hereby dismissed. 7
The amount in deposit is directed to be transferred to the Tribunal for disbursement.
Sd/-
JUDGE Srl.