Karnataka High Court
Ankush S/O Suresh Pawar And Ors vs The Divisional Controller And Ors on 6 April, 2018
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
MFA NO.200698/2015 (MV)
&
MFA NO.200699/2015 (MV)
MFA NO.200698/2015
BETWEEN:
1. Ankush S/o. Suresh Pawar
Age: 43 years, Occ: Coolie,
2. Akash S/o. Ankush Pawar
Age: 16 years, M/G by Petitioner No.1
3. Ankita D/o. Ankush Pawar
Age: 11 years, M/G by Petitioner No.1
All are R/o. Near Old Karad Naka,
Pandharpur, Dist. Solapur,
Now residing at Arakeri,
Tq. & Dist. Vijayapura.
... Appellants
(By Sri Sanganagouda V.Biradar, Advocate)
AND:
1. The Divisional Controller,
M.S.R.T.C., Solapur Division,
Solapur - 600211.
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2. Prashant S/o. Prabhakar Zinjurte
Age: 43 years, Occ: Business,
R/o. H.No.335, Zende Galle,
Pandharpur, Dist. Solapur,
Maharashtra - 413001.
3. The Branch Manager
United India Insurance Co. Ltd.,
Vijayapura - 586101.
... Respondents
(Sri Rahul R.Asture, Advocate for R1;
R2 & R2 are - Served )
This MFA filed under Section 173 (1) of MV Act praying
to allow this appeal modify the judgement and award
dated:18.02.2015 passed by the Presiding Officer, Fast Track
Court, at Vijayapura, in M.V.C.No.1910/2012.
MFA NO.200699/2015 (MV)
BETWEEN:
1. Naganath S/o. Bhima Gujarathe
Age:52 years, Occ: Nil,
2. Sunanda W/o. Naganath Gujarathe
Age: 51 years, Occ: Nil,
Both are R/o. Maradi,
Tq. North Solapur,
District : Solapur, Now residing at
Arakeri, Tq. & Dist. Vijayapura
... Appellants
(By Sri Sanganagouda V.Biradar, Advocate)
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AND:
1. The Divisional Controller
M.S.R.T.C., Solapur Division
Solapur - 416416.
2. Prashant S/o. Prabhakar Zinjurte
Age: 42 years, Occ: Business,
R/o. H.No.335, Zande Galle,
Pandharapur, Dist. Solapur,
Maharashtra - 413001.
3. The Branch Manager
United India Insurance Co. Ltd.,
Vijayapura - 586101.
4. Manju W/o. Bandu Gujarathe
Age: 24 years, Occ: Household work,
5. Rohit S/o. Bandu Gujarathe
Age: 5 years, M/G by Respondent No.4,
Respondent No.4 and 5 are R/o. Mardi,
Tq. North Solapur,
Dist. Solapur - 416416.
... Respondents
(Sri Rahul R.Asture, Advocate for R1;
V/o. dated 15.02.2018 Notice to R2 is held sufficient;
Sri Augustin, Advocate for R3;
Sri Sanganabasav B.Patil, Advocate for R4;
R5 is minor Reptd. By R4)
This MFA filed under Section 173 (1) of MV Act praying
to allow this appeal modify the judgement and award
dated:18.02.2015 passed by the Presiding Officer, Fast Track
Court, at Vijayapura, in M.V.C.No.1519/2013.
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These appeals coming on for Admission this day, the
Court delivered the following:
JUDGMENT
These two appeals are filed by the claimants for enhancement against the impugned Judgment and awards dated: 18-02-2015 made in M.V.C. No.1910/2012 and M.V.C No.1519/2012 on the file of Presiding Officer, Fast Track Court, Vijayapura awarding compensation of Rs.5,48,000/- in M.V.C No.1910/2012 and Rs.6,50,000/- with 6% interest from the date of petition till realization.
2. It is the case of the claimants that on 6.6.2012 at about 4.00 p.m. the deceased Shobha in MVC No.1910/2012 and deceased Bhandu in MVC No.1519/2013 and another were travelling on a motorcycle bearing No.MH-13/AW-2427 coming towards Pandharpur from Solapur side, at that time, MSRTC Bus bearing No.MH-14/BT-2494 coming from opposite direction with a high speed and in rash and 5 negligent manner, dashed against the motorcycle resulting in accident. Due to this impact the deceased Shobha and Bhandu sustained severe injuries and succumbed to the injuries. It is further case of the claimants that deceased Shobha and Bhandu were preparing bricks and getting Rs.7,500/- per month respectively. Due to the death of the deceased persons, the claimants have lost their earning members in the family and they were facing difficulties. Therefore, the claimants in MVC No.1910/2012 and MVC No.1519/2013 claimed compensation of Rs.15,00,000/- each respectively.
3. Respondents No.2, 4 and 5 remained absent, placed exparte before the Tribunal.
4. The first respondent filed written statement and denied the averments made in the claim petition and contended that the petitions filed by the claimants are not maintainable and are liable to be dismissed and 6 further denied the age, income and occupation of the deceased persons and also denied funeral expenses and medical treatment. Further contended that the accident was due to rash and negligent driving of the motorcycle bearing No.MH-13/AW-2427 while driver was in drunken condition and not the driver of the MSRTC Bus bearing No.MH-14/BT-2494 and sought for dismissal of the claim petitions.
5. Second respondent-insurance company filed written statement and contended that the vehicle bearing No.MH-13/AW-2477 was insured with the second respondent, policy was in force from 6.10.2013 to 5.10.2012 subject to liability. It is further contended that the policy conditions have been violated. Therefore, second respondent is not liable to pay compensation. The accident occurred due to rash and negligent driving of the driver of the bus etc., and sought for dismissal of the claim petitions.
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6. Based on the aforesaid rival pleadings, the Tribunal framed the following issues: ISSUES IN MVC NO.1910/2012
1. Whether petitioners prove that Shobha W/o Ankush Pawar died in the road traffic accident that occurred on 6.6.2012 at about 4.00 p.m. on Pandharpur-Mohal road, near Pokhrapur village due to rash and negligent driving of the bus bearing No.MH-BT-2494 by its driver?
2. Whether petitioners are entitled for compensation? Of sp. What is the quantum and from whom?
3. What order or award?ISSUES IN MVC NO.1519/2013
1) Whether petitioners proves that deceased Bandu S/o Naganath Gajarathe, succumbed due to injuries sustained in the Motor accident that took place on 6.5.2012 at about 5.00 p.m. 8 Pandharpur-Mohal road, near Pokhrapur village due to rash and negligent driving of the Bus bearing No.MH-BT-2494 by its driver?
2) Whether petitioners are entitled for
compensation? If so, what is the
quantum and from whom?
3) What order or award?
7. The claimant No.1 in MVC No.1910/2012 examined as PW.1 and claimant No.2 in MVC No.1519/2013 examined as PW.2 and witness PW.3 doctor examined as PW.4 and marked documents Ex.P.1 to P.16. On behalf of the respondents, first respondent, driver examined as RW.1, no documents were marked.
8. The Tribunal considering both oral and documentary evidence on record has recorded a findng that the deceased Shobha and Bhandu died on the spot due to the accident occurred on 6.6.2012 due to the 9 rash and negligent driving of the driver of the bus and the claimants are entitled for compensation. Accordingly, the Tribunal by the impugned judgment and award has awarded compensation of Rs.5,48,000/- in MVC No.1910/2012 and Rs.6,50,000/- in MVC No.1519/2013 with interest @ 6% p.a. from the date of petition till the realisation respectively. Hence, the present appeals are filed by the claimants for enhancement.
9. The respondent No.1-MSRTC has not filed any appeal against the impugned judgment and award passed by the Tribunal.
10. I have heard the learned counsel for the parties to the lis.
11. Sri. Sanganagouda V.Biradar, learned counsel for the claimants in both cases would contend that the impugned judgment and award passed by the Tribunal 10 awarding compensation in respect of MVC cases are on lower side and contrary to the material on record. He would further contend that the Tribunal has erred in taking the income of the deceased at Rs.3,500/- in case of deceased Shobha and Rs.5,000/- in case of deceased Bhandu which is on the lower side and contrary to the material on record ignoring the evidence of PWs.1 and 3 who stated on oath that the deceased persons were doing business in preparing of bricks and they used to earn Rs.7,500/- per month respectively, the same has not been considered by the Tribunal. He would further contend that due to the accident occurred on 6.6.2012, both Shobha and Bhandu died in view of the rash and negligent driving of the driver of the bus bearing No.MH- 14/BT-2494 and the same is evidenced by Ex.P.1 to P.12. The Corporation has not challenged the same. Therefore, the Tribunal ought to have taken the income of the deceased Shobha and Bhandu as prayed for, the same has not been done by the Tribunal. Therefore, he 11 would contend that the compensation awarded on other heads is on lower side. Therefore, he sought to allow the appeal. He would further contend that the claimants in MVC No.1519/2013 are father and mother, and wife and son were impleaded as respondent Nos.4 and 5 in the claim petition. Unfortunately, the Tribunal has not considered the same and erroneously deducted 50% of the income of the deceased holding that he was a bachelor ignoring the fact that he had a wife and son.
12. Per contra, Sri Rahul R.Asture, learned counsel for the respondent No.1 sought to justify the impugned judgment and award and contended that in the absence of any material produced in both cases that deceased Shobha and Bhandu were doing business of preparing bricks, the Tribunal has justified in taking the income of Shobha at Rs.3,500/- p.m. and income of deceased Bhandu at Rs.5,000/- p.m. He would further contend that the compensation awarded is just and 12 reasonable. Therefore, the impugned judgment and awards do not call for interference of this Court.
13. Having heard the learned counsel for the parties, it is an undisputed fact that both Shobha and Bhandu died in the road accident occurred on 6.6.2012 due to rash and negligent driving of bus bearing No.MH- 14/BT-2494. It is also not in dispute that the rash and negligent driving of the bus is evidenced by the PWs.1 and 3 and Ex.P.1 to P.12. The Corporation has not adduced any contra evidence and produced contra material document to disprove the evidence. The said finding recorded by the Tribunal has reached finality.
14. It is the specific case of the PWs.1 and 3 that deceased Shobha and Bhandu were earning Rs.7,500/- respectively by preparing bricks, the same was not contravened by the respondent-Corporation. Taking into consideration the accident occurred on 6.6.2012 and the age of both the deceased Shobha and Bhandu 13 were aged 35 years, the Tribunal ought to have taken income of the deceased persons at least Rs.6,500/- p.m. The deceased Shobha died leaving behind three persons and the deceased Bhandu died leaving behind four persons. The Tribunal ought to have deducted 1/3rd and 1/4th towards personal expenses of the deceased persons in terms of the Sarala Varma (Smt) and Others /vs/ Delhi Transport Corporation and another reported in AIR 2009 SAC 3104, the same has not been done in the present case. It is also not in dispute that, the material on record depicts that in claim petition in MVC No.1519/2013 the claimants are parents of the deceased Bhandu and respondent Nos.4 and 5 in the claim petition are the wife and the son. Unfortunately, the Tribunal has not considered the said fact even same has been clearly mentioned in the claim petition and proceeded to hold that the deceased Bhandu was a bachelor and 50% has to be deducted from the income assessed from the deceased Bhandu 14 which is erroneous, contrary to material on record. It is not the case of the Corporation/respondents before the Tribunal that deceased Bhandu was a bachelor and left behind only parents and respondents No.4 and 5 are not the wife and son. In the absence of any evidence Tribunal ought not to have deducted 50% ignoring the fact that deceased has left behind father, mother, wife and minor son.
15. If we take the income of the deceased Shobha at Rs.6,500/- p.m. and after deducting 1/3rd, the loss of dependency would be Rs.8,32,128/-
(4334x12x16=8,32,128/-).
16. If we take the income of the deceased Bhandu at Rs.6,500/- p.m. and after deducting 1/4th, the loss of dependency would be Rs.10,53,000/- (4875 x12 x 18 =10,53,000/-).
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17. It is also not in dispute that the oral evidence of PWs.1 to 4 and material documents Ex.P.1 to P.16 not contravened nor adduced any contra evidence by the insurance company. Therefore, in both the cases, the claimants are entitled enhanced compensation.
18. After re-assessing the entire material on record in MVC No.200698/2015 arising out of MVC No.1910/2012 the claimants are entitled the just compensation as under:
1) Loss of dependency (Rs.4334x12x16) Rs.8,32,128/-
2) Funeral expenses and other
Obsequies. Rs.0,20,000/-
3) Loss of Love and affection Rs.0,30,000/-
4) Loss of consortium Rs.0,25,000/-
5) Loss of estate Rs.0,25,000/-
Total Rs.9,32,128/-
In all the claimants in MVC No.1910/2012 are entitled for compensation of Rs.9,32,128/- as against 16 Rs.5,48,000/- awarded by the Tribunal. The enhanced compensation would be Rs.3,84,128/-.
19. The claimants in MFA No.200699/2015 arising out of MVC No.1519/2013, the present appellants and respondent Nos.4 and 5 wife and minor son are entitled just compensation as under:
1) Loss of dependency Rs.10,53,000/-
2) Funeral expenses and other
Obsequies. Rs.00,20,000/-
3) Loss of Love and affection Rs.00,40,000/-
4) Loss of estate Rs.00,50,000/-
Total Rs.11,63,000/-
In all the claimants are entitled for compensation of Rs.11,63,000/- as against Rs.6,50,000/- awarded by the Tribunal. The enhanced compensation would be Rs.5,13,000/-.
20. For the reasons stated above, MFA No.200698/2015 is allowed in part. The impugned 17 judgment and award dated 18.02.2015 passed by the Tribunal made in MVC No.1910/2012 is hereby modified and the claimants are entitled for total compensation of Rs.9,32,128/- as against Rs.5,48,000/-. The enhanced compensation would be Rs.3,84,128/- with interest @ 6% p.a. from the date of petition till the date of realization.
21. MFA No.200699/2015 is allowed in part. The impugned judgment and award dated 18.02.2015 made in MVC No.1519/2013 is modified and the claimants are entitled total compensation of Rs.11,63,000/- as against Rs.6,50,000/-. The enhanced compensation would be Rs.5,13,000/- with interest @ 6% p.a. from the date of petition till realization.
22. In MFA No.200699/2015 the claimants are parents of deceased, respondent Nos.4 and 5 are wife and son of deceased. The Tribunal without noticing the said fact has awarded compensation of Rs.6,50,000/- to 18 only parents. In order to do justice between the parties, the wife and son are also entitled compensation equally along with the parents of the deceased. Unfortunately, they have not filed any appeal before this Court. Taking into consideration the material on record, this Court is of the considered opinion that the parents are entitled for Rs.1,00,000/- each with interest out of the enhanced compensation and remaining amount of Rs.3,13,000/- with interest the respondent Nos.4 and 5 Manju and Rohit who are wife and son are entitled to get it in equal proportionate. Rs.1,56,500/- with interest shall be deposited in the name of respondent No.5 Rohit, minor son of the deceased for a period of ten years in any nationalised Bank and respondent No.4 Manju, mother of respondent No.5 is entitled to receive the periodical interest. Out of the share of respondent No.4 Manju, Rs.1,00,000/- shall be deposited in her name in any nationalized Bank for a period of five years and she is entitled to receive periodical interest. 19 Remaining amount of Rs.56,000/- with interest shall be released in favour of the respondent No.4 Manju.
Ordered accordingly.
Sd/-
JUDGE MWS/NSP CT/VK