Karnataka High Court
The Managing Director vs Tarabai W/O Babagouda Patil on 24 January, 2017
Author: S.Sujatha
Bench: S.Sujatha
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9th DAY OF AUGUST 2016
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
M.F.A.NO.20087/2010 (MV)
C/w. MFA No.20088/2010, MFA No.20090/2010,
MFA No.20037/2010, MFA No.20038/2010,
MFA No.20039/2010 & MFA No.20040/2010
IN MFA NO.20087 OF 2010:
BETWEEN
THE MANAGING DIRECTOR
NWKRTC, CENTRAL OFFICE, HUBLI DIVISION
HUBLI, DIST: DHARWAD
PRESENTLY REP. BY THE CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICE, HUBLI-580 030
... APPELLANT
(BY SRI.CHANDRASHEKHAR M. HOSAMANI, ADVOCATE)
AND
1. SMT. TARABAI W/O BABAGOUDA PATIL
AGE 54 YEARS, OCC: HOUSEWIFE
R/O: HUKKERI , TQ: HUKKERI
DIST: BELGAUM
2. SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINESS
R/O: KALLOLI, TQ: HUKKERI
DIST: BELGAUM
:2:
3. THE DIVISIONAL MANAGER
UNITED INDIAL INSURENCE CO. LTD.
MARUTI GALLI, BELGAUM
... RESPONDENTS
(BY SRI.VITTAL S.TELI, ADVOCATE FOR R1;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R2;
RESPONDENT NO.3 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINNST THE JUDGMENT AND AWARD DATED 19.08.2009,
PASSED IN MVC NO.1920/2005 ON THE FILE OF THE MEMBER,
ADDL. MACT, HUKKERI AT HUKKERI, AWARDING THE
COMPENSATION OF RS.1,21,000/- WITH INTEREST AT THE RAT
EOF 6% P.A. FROMT HE DATE OF PETITION TILL REALISATION.
IN MFA NO.20088 OF 2010:
BETWEEN
THE MANAGING DIRECTOR
NWKRTC, CENTRAL OFFICE, HUBLI DIVISION
HUBLI, DIST: DHARWAD
PRESENTLY REP. BY THE CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICE, HUBLI-580 030
... APPELLANT
(BY SRI.CHANDRASHEKHAR M. HOSAMANI, ADVOCATE)
AND
1. BANDU S/O SHANKAR UMARANI
AGE 32 YEARS, OCC: AGRICULTURE
R/O: HUKKERI, TQ: HUKKERI
DIST: BELGAUM
2. SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINESS,
R/O: KALLOLI, TQ: CHIKODI
DIST: BELGAUM
:3:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
MARUTIGALLI, BELGAUM
... RESPONDENTS
(BY SRI.VITTAL S.TELI, ADVOCATE FOR R1;
SRI.GURUKUMAR V.A., ADVOCATE FOR R2;
SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINNST THE JUDGMENT AND AWARD DATED 19.08.2009,
PASSED IN MVC NO.1918/2005 ON THE FILE OF THE MEMBER,
ADDL. MACT, HUKKERI AT HUKKERI, AWARDING THE
COMPENSATION OF RS.1,95,000/- WITH INTEREST AT THE RAT
EOF 6% P.A. FROMT HE DATE OF PETITION TILL REALISATION.
IN MFA NO.20090 OF 2010:
BETWEEN
THE MANAGING DIRECTOR
NWKRTC, CENTRAL OFFICE, HUBLI DIVISION
HUBLI, DIST: DHARWAD
PRESENTLY REP. BY THE CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICE, HUBLI-580 030
... APPELLANT
(BY SRI.CHANDRASHEKHAR M. HOSAMANI, ADVOCATE)
AND
1. BANDU S/O SHANKAR UMARANI
AGE 32 YEARS, OCC: AGRICULTURE
R/O: HUKKERI, TQ: HUKKERI
DIST: BELGAUM
2. SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINESS,
R/O: KALLOLI, TQ: CHIKODI
DIST: BELGAUM
:4:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
MARUTIGALLI, BELGAUM
... RESPONDENTS
(BY SRI.VITTAL S.TELI, ADVOCATE FOR R1;
RESPONDENT NO.2 - SERVED;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINNST THE JUDGMENT AND AWARD DATED 19.08.2009,
PASSED IN MVC NO.1917/2005 ON THE FILE OF THE MEMBER,
ADDL. MACT, HUKKERI AT HUKKERI, AWARDING THE
COMPENSATION OF RS.2,31,000/- WITH INTEREST AT THE RAT
EOF 6% P.A. FROMT HE DATE OF PETITION TILL REALISATION.
IN MFA NO.20037 OF 2010:
BETWEEN
SRI.BANDU S/O SHANKAR UMARANI
AGE 32 YEARS, OCC: NIL
R/O: HUKKERI, TQ: HUKKERI
DIST: BELGAUM
... APPELLANT
(BY SRI.VITTAL S.TELI, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
CENTRAL OFFICE, NWKSRTC,
HUBLI DIVISION, HUBLI,
DT: DHARWAD
2. SRI.SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINES
R/O: KALLOLI, TQ: CHIKODI
DT: BELGAUM
:5:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURNCE CO LTD
MARUTI GALLI, BELGAUM
... RESPONDENTS
(BY SRI.CHANDRASHEKHAR M.HOSAMANI FOR R1;
RESPONDENT NO.2 - SERVED;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19-08-2009 PASSED IN MVC
NO.1917/2005 ON THE FILE OF THE MEMBER, ADDL. MACT,
HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.20038 OF 2010:
BETWEEN
SRI.BANDU S/O SHANKAR UMARANI
AGE 32 YEARS, OCC: NIL
R/O: HUKKERI, TQ: HUKKERI
DIST: BELGAUM
... APPELLANT
(BY SRI.VITTAL S.TELI, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
CENTRAL OFFICE,
NWKSRTC, HUBLI DIVISION
HUBLI, DT: DHARWAD
2. SRI.SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINES
R/O: KALLOLI, TQ: CHIKODI
DT: BELGAUM
:6:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURNCE CO LTD
MARUTI GALLI, BELGAUM
... RESPONDENTS
(BY SRI.CHANDRASHEKHAR M.HOSAMANI FOR R1;
NOTICE R2 IS DISPENSED WITH;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19-08-2009 PASSED IN MVC
NO.1918/2005 ON THE FILE OF THE MEMBER, ADDL. MACT,
HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.20039 OF 2010:
BETWEEN
SRI.SHIVANGOUDA VEERGOUDA PATIL
AGE: 54 YAEAR, OCC: NIL
R/O: HUKKERI, TQ: HUKKERI
DIST: BELGAUM
... APPELLANT
(BY SRI.VITTHAL S.TELI, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
CENTRAL OFFICE,
NWKSRTC, HUBLI DIVISION
HUBLI, DT: DHARWAD
2. SRI.SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINES
R/O: KALLOLI, TQ: CHIKODI
DT: BELGAUM
:7:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURNCE CO LTD
MARUTI GALLI, BELGAUM
... RESPONDENTS
(BY SRI.CHANDRASHEKHAR M.HOSAMANI FOR R1; R2 - SERVED;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19-08-2009 PASSED IN MVC
NO.1919/2005 ON THE FILE OF THE MEMBER, ADDL. MACT,
HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.20040 OF 2010:
BETWEEN
SMT.TARABAI BABAGOUDA PATIL
AGE 54 YEARS, OCC: HOUSEHOLD WIFE
R/O: HUKKERI TQ: HUKKERI
DIST: BELGAUM
... APPELLANT
(BY SRI.VITTHAL S.TELI, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
CENTRAL OFFICE,
NWKSRTC, HUBLI DIVISION
HUBLI, DT: DHARWAD
2. SRI.SHIVAJI SHANKAR BENNURKAR
AGE MAJOR, OCC: BUSINES
R/O: KALLOLI, TQ: CHIKODI
DT: BELGAUM
:8:
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURNCE CO LTD
MARUTI GALLI, BELGAUM
... RESPONDENTS
(BY SRI.CHANDRASHEKHAR M.HOSAMANI FOR R1;
RESPONDENT NO.2 - SERVED;
SRI.S.S.JOSHI FOR SRI.M.G.GADAGOLI, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19-08-2009 PASSED IN MVC
NO.1920/2005 ON THE FILE OF THE MEMBER, ADDL. MACT,
HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
NWKRTC (Corporation) as well as the claimants are before this Court challenging the common judgment passed in MVC Nos.1917, 1918 and 1920 of 2005 passed by the Motor Accident Claims Tribunal, Hukkeri ('the Tribunal' for short).
2. Briefly stated the facts are:
The claim petitions were instituted by the claimants seeking compensation for the death/injury of the victims of road traffic accident, which occurred on 05.04.2003 alleging the actionable negligence on the part of the driver of the bus :9: bearing Reg.No.KA-26/F308, which was under the control of the appellant-corporation. The appellate-corporation resisted the claim. The Tribunal after appreciating the evidence on record, awarded a total compensation of Rs.2,31,000/- in MVC No.1917/2005, Rs.1,95,000/- in MVC No.1918/2005 and Rs.2,31,000/- in MVC No.1919/2005 and Rs.1,21,000/- in MVC No.1920/2005. Being aggrieved, challenging the liability as well as quantum, the appellant-corporation is before this Court as far as MVC Nos.1917/2005, 1918/2005 and 1920/2005, whereas the claimants are seeking enhancement in all other matters besides MVC No.1919/2005.
3. The corporation assailing the impugned judgment and award would contend that despite the specific contention raised by the appellant-corporation, the Tribunal has held the issue of negligence against the corporation, indeed the accident occurred due to the rash and negligent driving of the driver of the Tempo Trax, as he failed to adhere to the stop and proceed rules. The accident spot was an intersection of state highway on which the bus was proceeding while the : 10 : Tempo Trax was cutting cross the state highway. Hence, the burden to take care was more on the driver of the Tempo Trax, failure to do so led to the accident and therefore the corporation is not liable to pay compensation. Moreover, the contributory negligence on the part of the driver of the Tempo Trax cannot be ruled out. It is further contended that even the quantum of compensation awarded is excessive.
4. Per contra, the claimants would contend that the appellant-corporation has satisfied the award as far as MVC No.1919/2005 is concerned. It is pointed out that the appellant-corporation had filed MFA No.20089/2010 challenging the quantum of compensation awarded by the Tribunal and this Court by order dated 29.07.2013 dismissed the said appeal. It is thus contended that once the appellant- corporation has satisfied the award arising out of the same accident and common judgment rendered by the Tribunal, the appellant-corporation is estopped from challenging the liability on the factum of contributory negligence on the part of the driver of the tempo trax. The Tribunal, after analytically : 11 : examining the material evidence on record fastened the liability on the appellant-corporation fixing the negligence on the driver of the bus. Hence, the challenge made by the appellant-corporation as regards the liability is liable to be dismissed.
5. As regards the quantum of compensation awarded by the Tribunal, it is submitted that the Tribunal ignoring the material evidence on record awarded a meager compensation under different heads, which necessarily calls for interference by this Court.
6. Learned counsel Sri.M.G.Gadagoli, appearing for respondent No.3 supporting the arguments of respondent No.1-claimants would contend that the factum of negligence on the part of the driver of the bus was established and hence, there is no reason for this Court to interfere with the well considered judgment and awards.
7. To appreciate the rival contentions of the parties, at the outset, it is necessary to refer to the judgment of this : 12 : Court in MFA No.20089/2010 filed by the appellant- corporation challenging the judgment and award passed in MVC No.1919/2005 arising out of the common judgment rendered by the Tribunal involving the same accident. A conspectus reading of the said judgment would reveal that the appellant-corporation had challenged the judgment in MVC No.1919/2005 only on the aspect of quantum of compensation and question of liability was not raised before this Court. This Court having examined the facts of the case dismissed the appeal, as the compensation awarded by the Tribunal at Rs.2,31,000/- being not excessive. It is significant to note that the said judgment was passed by this Court on 29.07.2013 without issuing notice to the respondents. Indeed, as on the date of disposal of the said appeal, the appeal filed by the claimants in MFA No.20039/2010 was pending before this Court. Since the pendency of MFA No.20039/2010 was not brought to the notice of this Court, the appeal filed by the appellant- corporation came to be dismissed without examining the : 13 : aspect of enhancement of compensation awarded by the Tribunal, as sought by the claimants. It is also pointed out that the appellant-corporation has satisfied the award in respect of MVC No.1919/2005.
8. It is well settled legal position that once the corporation has satisfied the award accepting the liability arising from the same accident, considered by the Tribunal in the same batch of petitions and a common judgment being rendered, the appellant-corporation is estopped from challenging the liability in other cases. This view is supported by the judgment of this Court in the case of B.U.Chaitanya Vs Managing Direcotr, BMTC reported in 2013 ACJ 1423. Thus, the challenge made by the insurer regarding liability to satisfy the award falls to the ground.
In MFA No.20037/2010
9. As regards the quantum of compensation awarded, it is significant to note that the Tribunal has determined the monthly income of the deceased at : 14 : Rs.2,250/-. Considering the normal mode of determination of income now adopted by this Court in identical cases, it would be just and reasonable to re-determine the monthly income of the deceased at Rs.3,250/-. The age of the deceased was 50 years as per the postmortem report. As per the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Another reported in 2009 ACJ 1298, the appropriate multiplier would be '13'. After deducting 1/3rd of the income of the deceased towards personal expenses, the loss of dependency works out to Rs.3,38,000/-. The compensation awarded under different heads is also on the lower side. Considering the date of accident and the judgment of the Hon'ble Apex Court in the case of Rajesh and others vs. Rajbir Singh and others reported in (2013) 9 SCC 54, a sum of Rs.25,000/- towards loss of love and affection and Rs.25,000/- towards funeral and transportation of dead body etc. would be the just and reasonable compensation. Thus, the compensation awarded by the Tribunal is modified as under:
: 15 :
i) Loss of dependency Rs. 3,38,000/-
ii) Loss of love and affection Rs. 25,000/-
iii) Funeral & transportation of Rs. 25,000/-
dead body etc.
Total Rs. 3,88,000/-
10. Thus, the claimants shall be entitled to the total compensation of Rs.3,88,000/- as against Rs.2,31,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
In MFA No.20038/2010
11. The compensation awarded by the Tribunal is on the lower side compared to the age of the deceased, date of accident and the income of the deceased. The Tribunal has determined the monthly income of the deceased at Rs.2,250/-, which is on the lower side compared to the normal determination made by this Court in identical cases. Thus, the monthly income is re-determined at Rs.3,250/- in the absence of convincing evidence placed on record by the claimants to establish the actual emoluments received by the deceased as income. Deducting 1/3rd of the income of the : 16 : deceased towards personal expenses, the loss of dependency works out to Rs.2,34,000/-. As per the judgment of the Hon'ble Apex Court in the case of Rajesh and Others (supra), a sum of Rs.25,000/- is awarded towards loss of love and affection and a sum of Rs.25,000/- is awarded towards funeral and transportation of dead body etc. Thus, the compensation awarded by the Tribunal is modified as under:
i) Loss of dependency Rs. 2,34,000/-
ii) Loss of love and affection Rs. 25,000/-
iii) Funeral & transportation of Rs. 25,000/-
dead body etc.
Total Rs. 2,84,000/-
12. Thus, the claimants shall be entitled to the total compensation of Rs.2,84,000/- as against Rs.1,95,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
In MFA No.20039/2010
13. It is significant to note that MFA No.20089/2010 filed by NWKRTC challenging the judgment and order passed : 17 : in MVC No.1919/2005 was dismissed holding that the compensation awarded by the Tribunal at Rs.2,31,000/- cannot be held to be excessive to warrant interference in appeal. Though this MFA No.20039/2010 filed by the claimants was pending before this Court, which was filed prior to filing of MFA No.20089/2010, the pendency of MFA No.20039/2010 was not brought to the notice of this Court while dismissing MFA No.20089/2010. The said appeal came to be dismissed at the stage of orders before issuing notice to the other side. In view of the pendency of the appeal filed by the claimants not being brought to the notice of the Court, the order passed in MFA No.20089/2010 dated 29.07.2013 would not cause any impediment for the claimants to pursue the appeal filed by them prior to the dismissal of the appeal filed by NWKRTC. In the circumstances, I deem it appropriate to consider the case of the claimants for enhancement of compensation.
14. The Tribunal determined the monthly income of the deceased at Rs.2,250/-. However, in view of normal : 18 : determination made by this Court in identical cases, the monthly income of the deceased can be safely re-determined at Rs.3,250/-. Thus, applying the multiplier of '13*' since the deceased was aged 50 years and deducting 1/3rd of the income of the deceased towards personal expenses, the loss of dependency works out to Rs.3,38,000/-. The compensation awarded by the Tribunal towards loss of love and affection and funeral and transportation of dead body etc. is too meager. In view of the judgment of the Hon'ble Apex Court in the case of Rajesh and Others (supra), a sum of Rs.25,000/- is awarded towards loss of love and affection and a sum of Rs.25,000/- is awarded towards funeral and transportation of dead body etc. Thus, the compensation awarded by the Tribunal is modified as under:
i) Loss of dependency Rs. 3,38,000/-
ii) Loss of love and affection Rs. 25,000/-
iii) Funeral & transportation of Rs. 25,000/-
dead body etc.
Total Rs. 3,88,000/-
15. Thus, the claimants shall be entitled to the total compensation of Rs.3,88,000/- as against Rs.2,31,000/-
* Corrected vide chamber Order dated 24.01.2017 Sd/-
(SSJ) : 19 : awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
In MFA No.20040/2010
16. The deceased was aged about 65 years and his monthly income was determined by the Tribunal notionally at Rs.*22,000/- p.a. Applying the multiplier of '7' and deducting 1/3rd of the income of the deceased towards personal expenses, the loss of dependency works out to Rs.1,05,000/-. In view of the judgment of the Hon'ble Apex Court in the case of Rajesh and Others (supra), a sum of Rs.25,000/- is awarded towards loss of love and affection and a sum of Rs.25,000/- is awarded towards funeral and transportation of dead body etc. Thus, the compensation awarded by the Tribunal is modified as under:
i) Loss of dependency Rs. 1,05,000/-
ii) Loss of love and affection Rs. 25,000/-
iii) Funeral & transportation of Rs. 25,000/-
dead body etc.
Total Rs. 1,55,000/-
* Corrected vide chamber
Order dated 24.01.2017
Sd/-
(SSJ)
: 20 :
17. Thus, the claimants shall be entitled to the total compensation of Rs.1,55,000/- as against Rs.1,21,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
Thus, the appeals filed by the corporation are dismissed and the appeals filed by the claimants are allowed to the extent indicated above.
The amount in deposit, if any, shall be transferred to the jurisdictional Tribunal for disbursement.
Sd/-
JUDGE MBS/-