Karnataka High Court
Geeta W/O Girish Awati vs The Managing Director on 7 December, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF DECEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL CROSS OBJECTION NO.100142/2015
C/W MISCELLANEOUS FIRST APPEAL NO.103165/2014 (MV)
IN MFA.CROB NO 100142 OF 2015
BETWEEN
GEETA W/O GIRISH AWATI
AGE: 25 YEARS,
OCC: HOUSEHOLD WORK,
NEAR KYARAKOPPA, TQ & DIST: DHARWAD.
... CROSS OBJECTOR
(By Sri. S N BANAKAR, ADV.)
AND
1. THE MANAGING DIRECTOR
N.W.K.R.T.C., GOKUL ROAD,
HUBLI-580026, DIST: DHARWAD.
2. THE SELF INSURANCE FUND, N.W.K.R.T.C
GOKUL ROAD, HUBLI-580026,
(OWNER AND INSURER OF THE
N.W.K.R.T.C. BUS NO.KA-42/F-1179)
3. SHANKARAPPA DHAREPPA AWATI
AGE: 73 YEARS, OCC: NIL,
4. LAXMIBAI SHANKARAPPA AWATI
AGE: 71 YEARS, OCC: NIL,
BOTH ARE R/O: UKKALI
TQ: BASAVANBHAGEWADI-586101,
DIST: VIJAYAPUR.
... RESPONDENTS
(By Smt SHASHIKALA L. DESAI, ADV. FOR R1 & R2
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SRI DATTATRAYA J. NAIK, ADV. FOR R3 AND R4.)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CPC READ WITH SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.09.2014 PASSED IN MVC
NO.979 OF 2012 ON THE FILE OF THE PRESIDING OFFICER
FAST TRACK COURT AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, DHARWAD, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.103165 OF 2014
BETWEEN
1. THE MANAGING DIRECTOR, NWKRTC,
GOKUL ROAD, HUBLI
2. THE SELF INSURANCE FUND, NWKRTC
OWNER AND INSURER OF NWKRTC
BUS NO.KA-42/F-1179
BOTH ARE RPTD.BY CHIEF LAW OFFICER,
NWKRTC, CENTRL OFFICE, HUBLI
... APPELLANTs
(By Sri. SHASHIKALA L DESAI, ADV.)
AND
1. GEETA W/O GIRISH AWATI,
AGE: 24 YEARS. OCC: HOUSEHOLD WORK,
NEAR KYARAKOPPA, TALUKA & DIST: DHARWAD
2. SHANKARAPPA S/O DHAREPPA AWATI
AGE: 72 YEARS. OCC: NIL,
3. LAXMIBAI W/O SHANKARAPPA AWATI
AGE: 70 YEARS. OCC: NIL,
RESP.NO.2 AND 3 ARE R/O. UKKALLI,
TALUKA BASAVANBHAGEWADI,
DIST: BIJAPUR
... RESPONDENTS
(By Sri S N BANAKAR, ADV. FOR R1
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SRI. DATTATRAYA J. NAIK, ADV. FOR R2 AND R3)
THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT AND AWARD DTD:25.09.2014, PASSED IN
MVC.NO.979/2012 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT AND ADDITIONAL M.A.C.T., AT DHARWAD,
AWARDING THE COMPENSTION OF RS.4,62,839/- WITH
INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF
PETITION TILL ITS DEPOSIT.
MFA CROB AND MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Miscellaneous First Appeal No.103165 of 2014 has been preferred by the Corporation and Miscellaneous First Appeal Cross objection No.100142 of 2015 has been preferred by the appellant/claimant challenging the judgment and award dated 25.09.2014 passed by the Fast Track Court and Additional Motor Accident Claims Tribunal, Dharwad in MVC No.979 of 2012.
2. MFA Cross objection is admitted and with consent of the learned counsel appearing for the parties, both the cross objection and the appeal are taken up for final disposal.
3. Brief facts of the case are that, 4 On 08.11.2012 at about 11.15 a.m. Girish was proceeding on motorcycle bearing registration No.KA- 28/U-3504 from Dharwad to Belgaum and when he came near Degur, as he was intending to take the vehicle to the right side and when he was waiting for clearance of the road, at that time, the driver of the KSRTC bus bearing registration No.KA-42/F-1179 came from Belguam side at a high speed, rashly and negligently, and dashed to the motorcycle on which Girish was proceeding. As a result of the same, Girish sustained fatal injuries and died on the spot. In this behalf, a case is registered in P.S.Crime No.174 of 2012. It is further contended that the deceased was hale and healthy and he was working as a mason(goundi) and was earning Rs.40,000/- per annum. For having lost the bread earner, wife filed the claim petition under Section 163A of the Motor Vehicles Act, 1988, before the Tribunal seeking compensation.
In pursuance of the notice, respondent Nos.1 and 2 appeared and filed their written statements, by contending that the petition under Section 163A is not maintainable. They further contended that the said NWKSRTC bus was moving at a moderate speed, at that time, the rider of the motor cycle came on a wrong side without following the traffic rules and as a result of the same, the accident took place only because of the fault of the deceased himself. They further contended that the 5 deceased was in an intoxicated condition and the accident had taken place because of the intoxication. It is further contended that the owner and the insurer of the motor cycle were not arrayed as party, as such, the claim petition was bad for non-joinder of necessary parties. On these grounds, he prayed for dismissal of the petition.
Respondent Nos.3 and 4 parents of the deceased also filed objections to the claim petition contending that the sudden demise of the deceased had caused untold hardship and they were dependent on the deceased and, as such, they prayed that they are also entitled for grant of compensation.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether petitioner proves that on 8.11.2012 at about 11.50 a.m. on P.B.Road, near Devur petrol bunk deceased Girish proceeding by riding the motor cycle bearing Reg. No.KA-28/U-3504 from Dharwad towards Belgaum and waiting for passing of bus bearing Reg. No.KA-42/f-1179 and said bus came in high speed and rash and negligent manner without following any traffic rules and dashed against the motor cycle of the deceased and thereby deceased sustained fatal injuries and died on the spot?
2. Whether respondents No.1 and 2 proves that the accident in question occurred due to fault of deceased as he was riding motor cycle in intoxicated condition as contended in W.S. para No.6?6
3. Whether respondents No.1 and 2 prove that petition is bad for non-joinder of necessary parties as contended in W.S. para No.8?
4. Whether petitioner is entitled for compensation? If so, how much and from whom?
5. What order or award?
In order to prove her case, claimant got examined herself as P.W.1 and got marked Exs.P.1 to P.7. On behalf of respondent No.1, the driver of the bus was examined as R.W.1 and Exs.R.1 to R.5 were got marked. Respondent Nos.2 and 3 got themselves examined as R.Ws.2 and 3. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal awarding a sum of Rs.4,62,839/- with interest at the rate of 8% per annum.
4. Being not satisfied with the judgment and award passed by the Tribunal, the cross-objector/claimant is before this Court seeking enhancement of compensation and the Corporation is also in appeal challenging the judgment and award of the Tribunal contending that the compensation awarded by the Tribunal is on the higher side.
5. The main grounds urged by the learned counsel appearing for the appellant-Corporation are that the 7 Tribunal has erred in awarding compensation of Rs.4,53,339/- towards 'loss of dependency' by taking the notional income at the rate of Rs.40,000/- per annum. She further contended that the awarding compensation under section 163A is totally wrong. She further contended that though the Corporation had taken up the contention that the alleged accident had taken place due to the fault of the deceased himself, the said fact was not considered and appreciated by the Tribunal and, as such, the said judgment and award is liable to be set aside. On these grounds, she prayed for allowing the appeal.
6. Per contra, learned counsel appearing for the cross- objector/claimant vehemently argued and contended that the Tribunal has not appreciated the facts and circumstances of the case and the Tribunal has not awarded any compensation towards future prospects to the claimant. He further contended that the compensation awarded under the conventional heads is also on the lower side. On these grounds, he prayed for allowing the appeal by enhancing the compensation.
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7. The accident in question is not in dispute, so also the involvement of the vehicle in the accident, insured with the insurer.
8. As could be seen from the impugned judgment and award, petition came to be filed under Section 163A of the Motor Vehicles Act. It is the contention of the learned counsel for the appellant/Corporation that though it is contended in the written statement that the alleged accident had taken place due to the fault of the deceased himself, the said fact has not been considered and appreciated by the Tribunal. When the deceased himself had contributed to the alleged accident, the Tribunal ought not to have awarded the compensation. Though the said contention appears to be justifiable, now, in view of the decision of the Hon'ble Apex Court in the case of United India Insurance Company Ltd., v. Sunil Kumar and another reported in AIR 2017 SC 5710, it is the well settled principles of law that in a proceedings under Section 163A of the Motor Vehicles Act, it is not open for the insurer to raise any defence of negligence on the part of the victim. When the said fact has been settled by the Hon'ble 9 Apex Court that an insurer or a Corporation cannot take up the said contention and there is no scope for taking up such contention, in the light of the above discussion held by me and in view of the ratio laid down by the Hon'ble Apex Court the contention of the learned counsel for the appellant/Corporation that the deceased also contributed to the alleged accident is not sustainable in law and the same is rejected.
9. The second contention taken up by the learned counsel for the appellant/Corporation is that the compensation awarded under various heads is on the higher side. Per contra, the learned counsel appearing on behalf of the claimants have contended that the compensation awarded is on the lower side; future prospects has also not been awarded and the compensation awarded under the conventional heads is on the lower side. As could be seen from the judgment and award, it is the contention of the claimant that the deceased was doing mason work and was earning Rs.40,000/- per annum. By taking into consideration the fact that the deceased was earning 10 Rs.40,000/- per annum and, as the claim petition was filed under section 163A of the Motor Vehicles Act, the Tribunal after deducting 1/3rd of the notional income towards personal expenses of the deceased and after applying the multiplier of 17, has awarded an amount of Rs.4,53,339/- by following Schedule II of the Act. When we carefully peruse the Schedule II of the said Act, if the income is Rs.40,000/-, the method which has been adopted by the Tribunal appears to be just and proper. Under the said facts and circumstances, the amount which has been awarded by the tribunal appears to be just and proper.
10. Though the learned counsel for the cross- objector/claimant has contended that the Tribunal has not awarded any compensation under the head 'future prospects', as the deceased was having an income of Rs.40,000/- as he was aged 27, as on the date of the accident, but when the application has been filed under Section 163A of the Act, the Court cannot go beyond the Schedule II which has been fixed by the Act itself and there is no scope for awarding any future prospects. 11
11. Though the learned counsel for the cross- objector/claimant has contended that the compensation awarded under the conventional heads is on the lower side, as could be seen from Schedule II there in General damages in the nature of funeral expenses, loss of consortium and loss of estate, that it has been fixed at Rs.2,000/-, Rs.5,000/- and Rs,2,500/- respectively. The Tribunal, by keeping in view the said schedule has awarded the same compensation which has been mentioned in Schedule II, therein also there is no scope for enhancement of the compensation under the conventional heads.
12. Keeping in view the above said facts and circumstances, both - the appellant-Corporation and the cross-objector/claimant - have not made out any good grounds so as to interfere with the impugned judgment and award and to either reduce or enhance the compensation. Hence, the appeal and the cross-objection are dismissed as devoid of merits.
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The amount in deposit may be transmitted to the jurisdictional Tribunal forthwith and the compensation shall be disbursed as per the award of the Tribunal.
Sd/-
JUDGE Kmv/Kms