Karnataka High Court
The Divisional Manager vs Smt Shobha K Jagatap on 27 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:11399-DB
MFA No. 100552 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 100552 OF 2023 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
NWKRTC REPT. BY ITS CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI-580030.
...APPELLANT
(BY SRI. SUNITHA P. KALASOOR, ADVOCATE)
AND:
1. SMT. SHOBHA K. JAGATAP
AGE: 45 YEARS, OCC: HOUSE HOLD,
R/O: KANVIHONNAPUR,
TQ AND DIST: DHARWAD-580114.
2. SRI. KRISHNAPPA BABU RAO JAGATAP
S/O. SANGAPPA BETAGERI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
JAGADISH T R
R/O: KANVIHONNAPUR,
HIGH COURT TQ AND DIST: DHARWAD-580114.
OF KARNATAKA
DHARWAD
BENCH
2023.10.10
11:09:11 +0530
3. THE MANAGING DIRECTOR
VRL LOGISTICS LTD.,
NH 4 BENGALURU ROAD,
AT VARUR, DIST: DHARWAD-581207.
4. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE NO.1 AND 2 ENKAY COMPLEX,
KESHWAPUR, HUBBALLI-580023.
...RESPONDENTS
(BY SRI. VIJAYAKUMAR K.KOTIN, ADVOCATE FOR C/R1)
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NC: 2023:KHC-D:11399-DB
MFA No. 100552 of 2023
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
10.11.2021 PASSED IN MVC NO.649/2020 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BAILHONGAL, AWARDING COMPENSATION OF
Rs.32,48,400/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE
OF PETITION TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the NWKRTC is directed against the impugned judgment and award dated 10.11.2021 passed in MVC No.649/2020 by the learned Senior Civil Judge and Addl.
MACT, Bailhongal (for short, 'Tribunal'), whereby the Tribunal allowed the claim petition filed by the respondents No.1 and 2/claimants, parents of the deceased Prakash Krishnappa Jagatap, who expired in a fatal road traffic accident that occurred on 29.10.2019 and awarded a compensation in a sum of Rs.32,28,400/- together with interest at the rate of 9% per annum from the date of claim petition till date of realization.
2. Heard the learned counsel for the appellant/NWKRTC and learned counsel for respondent No.1/claimant and perused the material on record.
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3. A perusal of the material on record will indicate that the aforesaid deceased Prakash Krishnappa Jagatap was traveling in the offending KSRTC bus bearing registration No.KA-42/F-1084 at around 7 a.m. on 29.10.2019, when the driver of the offending KSRTC bus drove the same in a rash and negligent manner and dashed against the stationary Truck bearing registration No.KA-63/4607, resulting in the accident in question and demise of the aforesaid Prakash Krishnappa Jagatap. Accordingly, the claimants filed the aforesaid claim petition, in which the appellant/NWKRTC was arrayed as respondent No.1, while owner and insurer of the stationary Truck were arrayed as respondents No.2 and 3 respectively.
The appellant/NWKRTC contested the claim petition and filed statement of objections pursuant to which, the Tribunal framed following issues:
i) Whether the petitioners prove that the deceased Prakash Krishnappa Jagatap succumbed to injuries in the road accident that occurred on 29.10.2019 at about 7.00 am, near Kanavihonnapur village on Kanavihonnapur-
Hubballi road when he was proceeding with NWKRTC Bus due to the rash and negligent driving by the driver of the KSRTC Bus bearing No.KA.42/F-1084 and also due to the negligence of the driver of parked truck No.KA.63/4607?
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ii) Whether the petitioners are entitled for compensation? If so, what would be the quantum? Who is liable to compensate?
iii) What Order or award?
4. On behalf of the claimants, PW1 to PW3 were examined and marked documentary evidence as per Ex.P1 to P24; while appellant-NWKRTC examined its driver as RW1 but did not mark any documentary evidence.
5. After hearing the parties, the Tribunal came to the conclusion that the accident in question took place due to rash and negligent driving of the driver of the bus of the appellant as well as the stationary truck in the ratio 70:30.
Insofar as quantum of compensation is concerned, the Tribunal took into account that the deceased was working as Security Guard in SBI ATM and after considering/appreciating documentary evidence at Ex.P20 to P24, the Tribunal awarded aforesaid compensation amount of Rs.32,28,400/- in favour of the claimants holding that the appellant was liable to pay compensation to an extent of 70%, while the insurer of the stationary Truck was liable to pay compensation to an extent of 30%.
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6. The finding of the Tribunal with regard to the negligence as well as quantum of compensation is as under:
16. Issue No.1:- In order to prove the factum of accident the petitioner No.1 Smt Shobha has entered the witness box and examined herself as PW 1 and has reiterated about the occurrence of the accident, injuries sustained and death of her son Prakash Krishnappa Jagatap . She has got marked the police documents at Ex.P 1 to P8 in order to prove about the occurrence of the accident. Ex.P 1 is the true copy of complaint, Ex.P 2 is the true copy of FIR, Ex.P 3 is the true copy of restatement of complainant. Ex.P4 is true copy of crimedetails form. Ex.P5 is the true copy of sketch. Ex.P6 is the true copy of postmortem report. Ex.P7 is the true copy of IMV report shows that the damages caused to both the vehicles and accident was not due any mechanical defects of both the vehicles. Ex.P8 is the true copy of charge sheet in Crime No.181/2019.
17. Ex.P 1 shows that, on the basis of the complaint filed by Sri. Manjunath S/o Ananthappa Niralakatti about the accident the case was registered in crime No.181/2019 by Dharwad Rural Police. Ex.P 2 FIR reveals that, the Dhrwad Rural Police have registered a case in crime No.181/2019 for the offenses punishable under sections 279 337, 338 and 283 of I.P.C. against the accused No.1 Mr. Irappa Tirukappa Jivannavar who is the driver of KSRTC Bus bearing No.KA.42/F-1084 and accused No.2 Mr. Irfan Mabuli Mirjannvar who is the driver of Lorry bearing No.KA.63/4607.
18. Accident took place on 29/10/2019 and the complaint was lodged on the very same day and hence there is no delay in lodging the complaint.
Ex.P7 which is the IMV report reveals that the motor vehicle inspector has opined that, accident was not due to any mechanical defects of both the vehicles.
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19. Ex.P 8 is the certified copy of charge sheet reveals that, after the investigation police have filed the charge sheet against accused No.1 Mr. Irappa Tirukappa Jivannavar who is the driver of KSRTC Bus bearing No.KA.42/F-1084 for the offenses under section 279, 337, 338 and 304 (A) of IPC and accused No.2 Mr. Irfan Mabuli Mirjannvar who is the driver of Lorry bearing No.KA.63/4607 is charged for the offence under Section 283 of IPC. These police documents go to show that, there was an accident as alleged in the petition due to negligence of both drivers of KSRTC Bus and lorry.
20. The accident is not denied by the respondents but the manner of accident is denied. It is contended there was no negligence on the part of the driver of the KSRTC Bus but it was driver of the truck who was responsible for accident. Per contra the owner of the truck contends that it was the bus driver who was negligent. They are shifting negligence on oneanother.
21. Charge sheet is filed against accused No.1 Mr. Irappa Tirukappa Jivannavar who is the driver of KSRTC Bus bearing No.KA.42/F-1084 for the offences under section 279, 337, 338 and 304 (A) of IPC and accused No.2 Mr. Irfan Mabuli Mirjannvar also who is the driver of Lorry bearing No.KA.63/4607 for the offence under Section 283 of IPC.
22. In this regard it is apparent that, cross examination was made wherein in the cross examination of PW-1 it is tried to elicit the same. PW 1 in the cross examination by the learned counsel for respondent No.2 stated that the accident spot is a single road and it is a slope road and there is no space for walking and accident took place near Kanavehonnapur. She stated that her son Prakash was travelling in the KSRTC Bus, but she does not know its number. She admitted that the accident took place due to the fault of bus driver but because the truck was parked by the side of road. She stated that the -7- NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 driverof KSRTC bus lost control over the bus and dashed to parked lorry as there was no space to take the bus. She admitted that the driver of Bus dashed to the parked lorry and it is his fault. She admitted the accident took place due to the fault of the driver ofKSRTC bus.
23. In the cross-examination of PW.1 by the learned counsel for respondent No.1 she has denied that she did not see the accident. She admitted the accident road is a single road and it is Hubli-Dharwad road and there is heavy traffic. She stated that she does not know that the driver of KSRTC bus took his bus on to the left side of the road to avoid accident to opposite coming motorcycle and thereby the accident occurred. She admitted that the driver of bus was moving slowly. She admitted that the accident took place due to parking of lorry on the middle of the road without any indicators.
24. In the cross-examination of PW.1 by the learned counsel for respondent No.3 PW 1 has stated that she was in the house at the time of accident and she went to the place of accident after 10 minutes. She denied contents of the complaint.She admitted that the truck was parked by the side of the road and it was parked towards northern side. She denied that she does not know the accident took place due to whose fault.
25. RW.1 Sri Irappa Tirakappa Jivannavar who is the driver of offending KSRTC Bus bearing No.KA.42/F- 1082 has deposed that on 29.10.2019 he was discharging the duty on Dummad-Hubballi route and driving the bus on the said route. At that time one lorry was stationed in the middle of the road covering 75% of the road without showing indicators. At that time the rider of a bike suddenly came and in order to avoid the accident to the bike rider he took the bus to the left side and in the result dashed to the backside of the truck. He further deposed that the accident took place since the driver of truck had parked the truck negligently and as there was no space for passage of the vehicles. Thus he claims that he was not at fault.
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26. In the cross-examination of RW.1 by the counsel for the petitioners he has admitted that on 29.10.2019 the accident place within the jurisdiction of Mallapur and 3-4 people were injured in the said accident and Prakash also sustained injury. He admitted that Prakash died in the accident after two months after the accident. He stated the the accident spot is downward gradient road. He stated that the accident took place when he was taking the vehicle by the side in order to avoid the accident to the motorcycle. He stated that he had lodged complaint that the driver of truck had not put on the indicators.
He admitted that in Dharwad Court there is criminal case filed against him. He admitted that Dharwad Police have filed 'A' Charge sheet against him and driver of truck.
27. In the cross-examination of RW.1 by the learned counsel for respondent No.2 he has denied that the accident took place due to his fault. He admitted that the truck driver had parked his vehicle by the side of the road as per rules. He stated that the road was 14 feet wide. He denied that he himself dashed to the stationed truck negligently. He admitted that he has also filed complaint against the truck driver. He admitted the deceased Prakash was traveling in their Bus. He denied that the accident took place due to his fault as such their corporation is liable to pay compensation.
28. In the cross-examination of RW.1 by the learned counsel for respondent No.3 RW 1 has stated that he has field complaint that the truck was parked on the road after 02 days of the accident. He stated that the road was 16 feet wide. He denied that the roadwas 20 feet wide,and the truck driver had parked the vehicle in 08 feet and there was 12 feet space remaining to the right side. He admitted that generally 12 feet space is sufficient to take the bus, but there was no 12 feet space available. He denied that the truck indicates were switched on. He denied that the accident took place due to his own fault -9- NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 but not due to the fault of truck driver. Apart from this nothing is elicited to disbelieve occurrence of the accident.
29. It is beneficial to rely on the ruling reported in 2019 ACJ 159 in the case of Royal Sundaram Alliance Insurance Co. Ltd. V/s. Savita and others wherein it was observed that Negligence - Leaving vehicle in dangerous position
- Motor cycle dashed against a lorry parked in the middle of the road without switching on parking lights resulting in death of motorcyclist - Insurance company a lorry contended that lorry was parked on the correct side of the road by following traffic rules and abated charge sheet was filed against the deceased which indicates that deceased was at fault and also contributed to the accident - Charge
- sheet was filed against the lorry driver and lorry driver pleaded guilty - Spot panchanama mentions that driver had parked the lorry 2 ft away from the midline without switching on parking lights or any other indication - Accident occurred during night hours and parking lorry without just cause and without switching on parking lights or any other indication shows negligence on the part of lorry driver - Though abated charge- sheet was filed against the deceasedbut records indicate that lorry driver pleaded guilty and has not contested the case - Whether the Tribunal was justified in concluding that accident occurred due to sole negligence of lorry driver - Held : yes. The said ruling aptly suits the case on hand.
30. 2019 ACJ 159 in the case of Royal Sundaram Alliance Insurance Co. Ltd. V/s. Savita and others wherein it was observed that Negligence - Leaving vehicle in dangerous position
- Motor cycle dashed against a lorry parked in the middle of the road without switching on parking lights resulting in death of motorcyclist - Insurance company a lorry contended that lorry was parked on the correct side of the road by following traffic rules and abated charge sheet was filed against the deceased which indicates that deceased was at fault and also contributed to the accident - Charge
- sheet was filed against the lorry driver and
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 lorry driver pleaded guilty - Spot panchanama mentions that driver had parked the lorry 2 ft away from the midline without switching on parking lights or any other indication - Accident occurred during night hours and parking lorry without just cause and without switching on parking lights or any other indication shows negligence on the part of lorry driver - Though abated charge- sheet was filed against the deceased but records indicate that lorry driver pleaded guilty and has not contested the case - Whether the Tribunal was justified in concluding that accident occurred due to sole negligence of lorry driver - Held : yes. The said ruling aptly suits the case on hand.
31. These rulings applies to the present case. As per Ex.P 8 charge sheet the driver of the truck had dangerously parked the vehicle on the roadcausing disturbance to the traffic and had not switched on indicator lights. There is nothing contrary to show that there were parking lights switched on. Neither there is any evidence to hold that had switched on the parking lights or placed some indications to reveal parked truck. In the absence of such evidence it is to be held that there was also equal negligence on part of the driver of the truck.
32. Nothing is brought about in the evidence to hold that, the investigation done by the investigation officer is not fair and impartial. Investigation Officer is a public servant who is neither the friend of the petitioners nor the foe of the insurance company. Since nothing is elicited about the discrepancies in the charge sheet, there is nothing to hold that, investigation was not properly conducted by the Investigation Officer. As such this tribunal inclined to hold that, there was rash and negligence by the driver of KSRTC Bus bearing No.KA.42/F-1084 and also driver of the truck therefore charge sheet was filed against the driver of both the offending vehicles.
33. In a case of accident, it is not mandatory to prove the guilt of the accused beyond all reasonable doubts. For the purpose of claim petition mere proof of accident due to negligence is
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 sufficient. The degree of proof is proof by preponderance of probabilities. In this regard it is beneficial to rely on the decision reported in 2009 ACJ 287 in the case of National insurance company Vs Pushpa Rama and others wherein it was held that, the certified copy of the criminal court records such as FIR recovery memo and mechanical inspection of vehicle are documents of sufficient proof to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Thus as per the ratio laid down in the quoted ruling and on the basis of the police documents coupled with ocular evidence of PW. 1 and RW 1 it is sufficient to answer that, the accident was due to rash and negligence of drivers of both the offending vehicles. Charge sheet is not challenged. Thus, this tribunal is of the considered opinion that, the accident was due to actionable negligence on part of the driver of offending KSRTC Bus and also parked truck which resulted in death of Prakash Krishanappa Jagatap. Hence, I am inclined to answer this Issue No.1 in the affirmative.
34. Issue No.2:- Petitioner No.1 has deposed that her son died in the accident. Petitioner has also got marked the postmortem report as Ex.P.6. Ex.P6 postmortem report shows that Prakash Krishnappa Jagatap died due to septicaemia as a result of injuries sustained. Thus death of Prakash in the accident is proved. Accidental death is also not disputed.
35. Regarding the entitlement of compensation petitioners claim to be the dependents of the deceased Prakash. As already pointed out the deceased Prakash Krishnappa Jagatap died due to the impact of the injuries sustained in the accident. The fact that, petitioner No.1 is the mother and petitioner No.2 is the father of the deceased Prakash is not denied. Hence the petitioners are entitled for compensation.
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023
36. The entitlement of compensation are as under:-
Funeral and transportation expenses:
The deceased Prakash Krishanappa Jagatap was resident of Kanvihonnapur, Tq.&Dist: Dharwad. The accident occurred within the limits of Kanvihonnapur village near Kanavihonnapur village on Kanavihonnapur-Hubballi road and Prakash Krishanappa Jagatap succumbed due to the accidental injuries. The fact that the dead body was transported to his residence and conducted funeral cannot be ruled out. Thus, the parents petitioner Nos.1 and 2 might have spent some amount towards funeral and transportation expenses. As per the ruling reported in 2014 SLP Civil 25590 of 2014 in the case of National insurance company Ltd V Pranay Shetty and others petitioners are entitled for Rs.15,000/- as transportation of dead body and funeral expenses. Thus towards funeral and transportation expenses petitioners are entitled for Rs.15,000/-.
37. The classic judgment was delivered on 31 October, 2017 and the Hon'ble Supreme court has observed in Para 61 (viii)" Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rateof 10% in every three years". Thus the time is apt for a raise of 10 %. Thus, the petitioner No.2 is entitled for Rs 16,500/- as compensation for transportation of dead body and funeral expenses.
38. Loss of filial consortium:
In National Insurance Company Limited Vs. Pranay Sethi and others.(2017) 16 SCC 680 it was held that the claimants are entitled for compensation under the conventional heads i.e. funeral expenses, loss of consortium and loss of estate at the reasonable amountof Rs 70,000/-.
39. In Magma General Insurance Co. Ltd. (supra), the Hon'ble Supreme Court held as under:
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 "8.2....... Parental consortium is awarded to the children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count: Rajasthan High court in Jagmala Ram V Sohi Ram, 2017 (4) RLW 3368 (Raj) and Uttarkhand High Court in Rita Rana V. Pradeep Kumar, 2014(3) Y/c 1687 and Karnataka High Court in Lakshman V. Susheela Chand Choudhary, 1996 ACJ 1265 (Karnataka). However, there was no clarity with respect to the principles on which compensation could be awarded on loss offilial consortium.
In the present case, we deem it appropriate to award the father and the sister of the deceased an amount of Rs.40,000/- each for loss of filial consortium".
40. In Magma General Insurance Co. Ltd. Vs. Nanu Ram and Others reported in 2018 ACJ 2782 the Hon'ble Supreme Court considered the claim petition filed by the father, brother and sister of the deceased who died in a road traffic accident and awarded filial consortium (right of the parents of compensation) at Rs.40,000/- each.
41. In the recent decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors. 2020 SCC OnLine SC 410 the Hon'ble Apex Court relying on Pranay Sethi and Magma General Insurance Co. Ltd. awarded the compensation under conventional head at Rs.70,000/- i.e. towards loss of estate at the Rs.15,000/-, funeral expenses Rs.15,000/-. Spousal consortium at at Rs.40,000/- and parental consortium to the children at Rs.40,000/- each.
42. Similar principles have to be followed even in this case. Mr Prakash Krishnappa Jagatap the son of petitioner Nos.1 and 2 died in the motor vehicle accident. The Petitioner No.1 and 2 are his parents have lost the love and affection of their son. Premature death of Prakash Jagatap
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 has caused loss of his protection and affection in their advanced days in future. Thus, the petitioner No.1 and 2 are entitled for Rs 40,000/- each compensation for the loss of filial consortium. At 10 % enhanced rate it amounts to Rs 44,000/- each.
43. Loss of estate:- Petitioners would have succeeded to the estate of the deceased. The loss of their earning member has caused loss of estate. Hence petitioners are entitled for Rs 15,000/- towards loss of estate. At 10 % enhanced rate it amounts to Rs 16,500/-. The petitioner no 2 father is entitled for thisamount.
44. Medical expenses:- The deceased Sri Prakash Krishnappa Jagatap was admitted to Sri. Dharmasthala Manjunatheshwara College of medical Sciences and Hospital, Sattur, Dharwad as an inpatient on 29.10.2019, 30.10.2019 and 12.11.2019 as per Ex.P13 to P15 Hospital bills and thereafter, he was admitted to Shri. Balaji Institute of Neuro Science and Trauma, Hubli from 29.11.2019 to 13.12.2019 as an inpatient for sustaining of cervical cord injury and he was also given medical treatment. Ex.P9 prescriptions, Ex.P10, P13 to P14 are medical bills and Ex.P19 are medical records of SDM Hospital, Sattur shows that the deceased took treatment at SDM College, Sattur, Dharwad and at Shri. Balaji Institute of Neuro Sciences and Trauma, Hubli. Therefore, the medical expenses are also to be paid as compensation because if there was no medical expenses that amount would be the savings of the family. Ex.P17 are 05 X-Ray films and Ex.P18 are 12 CT Scan reports. Ex.P12 is the Discharge summary of Shri. Balaji Institute of Neuro Sciences and Trauma, Hubli. The Petitioner no 1 and 2 being the parents of the deceased Prakash Jagatap might have spent this amount. Hence, the petitioner no 1 the father of deceased Prakash is entitled for Rs.6,10,008/- towards medical expenses.
45. Loss of dependency: In this case, as per thepleadings, the deceased Prakash Krishnappa
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 Jagatap was aged about 24 years. PW.1 stated that her son was working as Security Guard in Central Investigation and Security Services Limited and earning Rs.15,009/- per month. She and her husband were dependent upon him. The respondents also denied the age, avocation and income of the deceased. However to prove the income of the deceased the petitioners have examined PW.2 Sri. Manjunath Kareppa Kurubar is working as Care taker supervisor under Central Investigation and Security Services Limited, Koramangal, Bengaluru. He further deposed that the deceased Prakash was also working as Security Guard in the said company and he was drawing salary of Rs.15,416/- per month. He further deposed that, he came to know that on 29.10.2019 when Prakash was coming to their office the accident took place on Kanavihonnapur - Hubli road and died due to the fatal injuries sustained by him. He deposed that as per the directions of their company he produced service certificate of deceased Prakash and his identity card.
46. In the cross-examination of PW.2 by the learned counsel for respondent No.1 stated that their company has orally directed him to lead the evidence, but authorization is not given in writing. He stated that he has produced his identity card that he was a care taker. He stated that the appointment order was given to Prakash. He denied that in order to help Prakash he has produced false documents and also mentioned more salary in the certificate.
47. In the cross-examination of PW.2 by the learned counsel for respondent No.3 has admitted that he is not a drawing officer. He stated that the deceased Prakash was working under him and he is the superior officer.
48. PW.3 Sri. Vinodkumar Basappa Jantali who is working as Field Officer in Central Investigation and Security Services Ltd., Koramangal, Bengaluru has also deposed that, the deceased Prakash was working as Security Guard in their company and
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 was drawing salary of Rs.15,416/- per month. He stated that he has issued salary certificate for the month of October-2019 and he signed it. Annual income is assessed atRs.1,84,992/-.
49. In the cross-examination of PW.3 by the learned counsel for respondent No.3 has stated that since 2016 he was working in Central Investigation as Field Officer. He stated that he was authorized to distribute the salary. He denied that he is deposing that in order to help Prakash and he has issued false certificate.
50. The petitioners have produced pay slip for the month of October 2019 as Ex.P16 in respect of deceased Prakash Krishnappa Jagatap which shows that he was drawing gross salary of Rs.15,416/- per month. Ex.P20 is the Service certificate issued by Central Investigation and Security Services Ltd., Bengalore to the deceased Prakash Jagata shows that the deceased was working as Security in SBI Bank ATM, Dharwad. Ex.P21 is the ID card of deceased Prakash issued by CISS. Hence, considering the Ex.P1 to P21 it is clear that the deceased was working as Security Guard in SBI, Dharwad and they are believable documents. Moreover the author of the said document Pw 3 also is examined and nothing is culled out in his cross examination to discredit his testimony. Therefore, this tribunal is inclined to take monthly income of the deceased as Rs.15,416/- as per Ex.P16 pay slip of the deceased issued by the CISS, Bengalore.
51. As per Ex.P20 Service certificate of the deceased Prakash shows his date of birth as 12.05.1995. The accident was occurred on 29.10.2019. Hence, the age of deceased Prakash is taken as 24 years as on the date of the accident.
52. In SLP Civil no 25590 of 2014 in the case of National insurance company ltd vs Pranay Sethi and others it was reiterated that age of the deceased should be applied while applying multiplier and case of Sarala verma and
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 the table therein has to be referred. It is further observed that while computing the income, an addition of 50% of actual salary to the income of deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years should be made Addition should be 30 % if the age was between 40 to 50 years and in case the deceased was between the age of 50 to 60 years addition should be 15%.
In case of self employed, or on a fixed salary an addition of 40 % of established income should be the warrant where deceased was below the age of 40 years, addition of 25 % where the deceased was between the age of 40 to 50 years and 10 % where thedeceased was between 50 to 60 years.
53. Deceased was 24 years as per postmortem report. Thus 50% of addition is to be made to annual income. Thus it comes to Rs.2,77,488/- ( Rs.1,84,992 +Rs 92,496).
54. The deceased was a bachelor and had the petitioner No.1 mother as dependent. The petitioner No.2 father is not a dependent on the income of the deceased as he is capable to earn income on his own. Therefore since deceased was bachelor half of the amount has to be deducted for personal expenses which comes to Rs.1,38,744/-. Thus the annual income for the purpose of calculating the loss of dependency is Rs 1,38,744/-
55. For the age of 24 years the multiplier applicable as per case law reported in AIR 2009 SCW . 3014 in case of Sarla Verma and Others V/s Delhi Transport Corporation and Others is "18". Hence, the calculation of the said loss of dependency is as under: Annual Income of Rs.1,38,744 X 18= Rs.24,97,392/- Hence, the petitioner no.1 mother is entitled for loss of dependency.
56. The petitioner no.1 mother of the deceased Prakash S/o Krishnappa Jagatap is entitled for compensation as under:
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 Loss of filial consortium Rs. 44,000/- Loss of dependency Rs. 24,97,392/-
Total Rs. 25,41,392/-
57. The petitioner no 1 mother is entitled for total compensation of Rs 25,41,392/- ( Rupees twenty five lakhs forty one thousand three hundred and ninety twoonly).
58. The petitioner no.2 the father of the deceased Prakash S/o Krishnappa Jagatap is entitled for compensation as under:
Funeral transportation & expenses Rs.16,500/- Loss of filial consortium Rs.44,000/-
Loss of estate Rs.16,500/- Medical expenses Rs.6,10,008/- Total Rs.6,87,008/-
59. The petitioner no 2 father is entitled for total compensation of Rs.6,87,008/- (Rupees six lakhs eighty seven thousand and eight only)
60. The petitioners are together entitled for total compensation of Rs.32,28,400/- (Rupees thirty two lakhs twenty eight thousand and four hundred only)
61. Regarding rate of interest the petitioner has claimed interest at the rate of 18% pa. On the other hand the respondent has contended that the claim of interest is excessive. The Hon'ble Apex Court in judgment reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), while awarding interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 Uphaar Tragedy). Further inthe later decision also the Hon'ble Supreme court in the case of Kaladevi and others V/s Bhagawan Das Chowan and others reported in ( 2014 ) 42 SCD 060 awarded interest at the rate of 9% per annum in the year 2014. Adhering to the dictum of the Hon'ble Apex court this tribunal is inclined to award the same rate of interest at 9 % per annum on the award amount excluding future medical expenses. Hence, I answer issue no.2 in the affirmative accordingly.
62. Regarding the liability as already observed respondent No.1 is a statutory company NWKRTC. Thusit is deemed that vehicle documents were in order. Hence, the respondent No.1 being the owner cum insurer of the offending vehicle is responsible to pay the compensation to the petitioners.
63. Since charge sheet was filed on drivers of both the vehicles the contributory negligence is to be fixed that ratio of 70:30. Thus the owners of both vehicles are liable to pay the compensation. To get indemnified there must be subsisting insurance coverage and no violation of policy conditions. Since there is insurancepolicy of both the bus and truck the insurers of both vehicles respondent no. 1 and 3 shall indemnify the owners to the extent of owners liability. Thus respondent no 1 is liable to indemnify for 70 % of total compensation which comes to Rs.32,28,400 x 70% = Rs.22,59,880/- and respondent no 3 liable for 30% of total compensation which comes to Rs.32,28,400 x 30% = Rs.9,68,520/-. Thus issue is answered in the affirmative.
64. Issue No. 3: In view of the guidelines issued by the Honble High Court of Karnataka in circular no. 2/2019 dated 19.08.2019 in LCA I- 120/2013, as per the guidelines are laid down to be followed in cases of accident as per the judgment in MFA no. 2509/2019 (ECA) in the case of Smt Yamuna Channabasappa Shetty Vs K Raghukumar @ Raghu, the respondent No.1 being owner cum insurer is directed to credit the
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 award amount to the bank account of the petitioners directly by NEFT or RTGS and inform the tribunal about the compliance made in this regard. Further the petitioner No.1 is hereby directed to furnish the details about the bank account with IFSC code and PAN card with copies of the said document at the office of the tribunal forthwith.
65. In view of my findings on issue no.1 and 2, Iproceed to pass the following:
ORDER The petition is hereby partlyallowed with costs of Rs 1,500/-.
The petitioner no 1 and 2 are together entitled for total compensation of Rs.32,28,400/- (Rupees thirty two lakhs twenty eight thousand and four hundred only) The petitioner no 1 is entitled for total compensation of Rs 25,41,392/- (Rupees twenty five lakhs forty one thousand three hundredand ninety two only) The petitioner No.2 is entitled for total compensation of Rs.6,87,008/- (Rupees six lakhs eighty seven thousand and eight only) as compensation.
The petitioners are entitled interest @ 9 % p.a on the compensation from the date of petition till the realization thereof.
The respondent No.1 and 3 are jointly and severally liable to pay the compensation to the petitioners. The owner cum insurer ie respondent no1 and respondent no 3 shall indemnify the respondent no 2 in payment of compensation in the ratioof 70 : 30.
The respondent No.1 owner cum
insurer of NWKSRTC Bus and
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NC: 2023:KHC-D:11399-DB
MFA No. 100552 of 2023
respondent No.3/insurer shall deposit the compensation amount in the said ratio within 30 days as required U/sec., 168(3) of Motor vehicle Act, 1988.
Respondent no 1 and 3 shall deposit 60 % of the award amount to petitioner no 1 by depositing the same to the bank account of the petitioner no 1 directly by NEFT orRTGS mode mode if the details are furnished, failing which the same shall be deposited to the tribunal. Remaining 40 % shall be deposited to the bank account of the claims tribunal. Intimate the tribunalaccordingly.
Respondent No.1 and 3 shall deposit entire amount with interest awarded to petitioner No.2 to the bank account of petitioner No. 2 directly by NEFT or RTGS mode and intimate the tribunal accordingly. Advocate fee is fixed at Rs. 1,500/-.
Draw award accordingly.
7. Upon re-appreciation, re-evaluation and re-
consideration of the entire material on record, we are of the considered opinion that the finding recorded by the Tribunal as regards the negligence and compensation awarded in favour of the claimants are correct and proper, which do not suffer from any illegality or infirmity warranting interference by this Court in the present appeal. Insofar as rate of interest awarded on the compensation amount is concerned, we are of the considered view that the interest awarded at
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NC: 2023:KHC-D:11399-DB MFA No. 100552 of 2023 the rate of 9% per annum is excessive and exorbitant and same needs to be reduced to 6% per annum payable on the compensation amount by suitably modifying the impugned judgment and award of the Tribunal.
8. In the result, we proceed to pass the following:
ORDER
a) The appeal stands partly allowed.
b) The impugned judgment and award of the Tribunal awarding compensation of Rs.32,28,400/- is hereby confirmed.
c) The rate of interest payable on the
aforesaid compensation amount is
reduced from 9% per annum to 6% per
annum.
d) Rest of the judgment and award of the
Tribunal is unaltered.
e) Draw modified award accordingly.
Sd
JUDGE
Sd
JUDGE
JTR
List No.: 1 Sl No.: 23