Partly allowed

The Managing Director v. Smt Kavita

Karnataka HC4 Sept 2012MISC.CVL/100688/2009

Case brief

AI extract

What is this about?

High Court heard Motor Accident claims by Transport Corporation and claimants seeking to modify an award. Court dismissed Corporation's appeal but partly allowed claimants' appeal, enhancing dependency loss calculation via multiplier.

What did the court decide?

Corporate appeal dismissed; Claimants appeal allowed in part; Compensation enhanced by Rs.57,000/- with 6% interest.

The Managing Director Vs Smt Kavita — Motor Accident Claims | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD.

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2012

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PRESENT

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THE HON’BLE MR.JUSTICE N.K.PATIL

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AND

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THE HON’BLE MR. JUSTICE B.V.PINTO

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M.F.A.NO.10528/2007 A/W MISC.CVL.100688/2009 (MV) C/W M.F.A.NO.10002/2007 (MV)

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IN M.F.A.NO.10528/2007 & MISC.CVL.100688/2009

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BETWEEN:

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THE MANAGING DIRECTOR NWKRTC, CENTRAL OFFICES, GOKUL ROAD, HUBLI.

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SELF INSURANCE FUND NWKRTC, GOKUL ROAD, HUBLI.

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BOTH ARE REPRESENTED BY THEIR CHIEF LAW OFFICER.

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… APPELLANTS (COMMON)

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(BY SRI.F.S.DABALI, ADV)

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AND:

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SMT KAVITA W/O KUMARSWAMY MALLIKERIMATH AGED 35 YEARS,

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OCC;HOUSEHOLD WORK,

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MAHANTESHSWAMY S/O KUMARSWAMY MALLIKERIMATH AGED 14 YEARS,OCC;STUDENT,

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KUMARI MADHURI D/O KUMARSWAMY MALLIKERIMATH AGED 12 YEARS,OCC;STUDENT,

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RESPONDENT NOS.2 AND 3 ARE MINORS, REPRESENTED BY GUARDIAN & MOTHER THE RESPONDENT NO.1 SMT KAVITA, R/AT MARKET ROAD, BOMMANAHALLI TQ;HANAGAL, DISTRICT;HAVERI.

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TARASEEM SINGH S/O MALAKITSINGH, AGE;MAJOR, OCC;OWNER OF LORRY NO.MP 09/KB 7975, R/O BRAHMAPURI, INDORE (M.P)

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THE MANAGER UNITED INDIA INSURANCE CO. LTD., INDORE, BY ITS DIVISIONAL OFFICE, LEA COMPLEX,DHARWAD. … RESPONDENTS

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(BY SRI.NAVEEN CHATRAD, FOR SRI.R.S.HEGDE, ADV FOR C/R1, R2 AND 3 ARE MINORS REP BY R1)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28/05/2007 PASSED IN MVC NO.469/2002 ON THE FILE OF THE FIRST ADDL.CIVIL JUDGE (SR.DN) AND ADDL.MACT, HUBLI, AWARDING COMPENSATION OF RS.5,00,060/- WITH COST AND INTEREST OF 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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MISC.CVL.100688/2009 IS FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE R/W ORDER 41 RULE 5 OF THE

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CPC PRAYING TO STAY THE OPERATION, EXECUTION AND FURTHER PROCEEDINGS IN PURSUANCE OF THE JUDGMENT AND AWARD PASSED BY THE COURT OF THE I ADDL. CIVIL JUDGE, (SR.DN.) AND ADDL. MACT, HUBLI, IN M.V.C.NO.469/2002 DT.28.05.2007.

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IN M.F.A.No.10002/2007

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SMT KAVITA W/O KUMARASWAMY MALLIKERIMATH AGED ABOUT 35 YRS R/AT MARKET ROAD BOMMANAHALLI HANGAL TQ HAVERI DIST

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MAHANTESHSWAMY S/O KUMARASWAMY MALLIKERIMATH AGED ABOUT 13 YRS

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KUMARI MADHURI D/O KUMARASWAMY MALLIKERIMATH AGED ABOUT 11 YRS

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APPELLANT NOS.1 AND 2 ARE MINORS REP. BY GUARDIAN MOTHER SMT KAVITA W/O KUMARASWAMY AGED ABOUT 35 YRS BOTH ARE R/AT BOMMANAHALLI HANGAL TQ HAVERI DIST.

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… APPELLANTS

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(BY SRI.NAVEEN CHATRAD, FOR SRI.MAHESH WODEYAR AND SRI.R.S.HEGDE, ADV)

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AND

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THE MANAGING DIRECTOR, N W K R T C GOKUL ROAD, HUBLI DHARWAD DIST

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SELF INSURANCE FUND N W K R T C GOKUL ROAD HUBLI DHARWAD BY ITS MANAGING DIRECTOR. ... RESPONDENTS

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(BY SRI. F S DABALI, ADV)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.5.2007 PASSED IN MVC NO. 469/2002 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) AND ADDL. MACT, HUBLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAs A/W MISC.CVL.100688/2009 COMING ON FOR ORDERS, THIS DAY, N.K.PATIL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these matters are posted for orders, with consent, they are taken up for final disposal.

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These appeals respectively by the Corporation and the claimants are directed against the impugned judgment and award dated 28.05.2007 passed in M.V.C.No.469/2002 by the I Addl. Civil Judge (Sr.Dn.) and Addl. MACT (for short ‘the Tribunal’), Hubli, awarding compensation of a sum of Rs.5,00,060/- under different heads with 6% interest p.a. from the date of petition till the date of realisation.

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While the Corporation has filed the appeal questioning the liability fasted on it and on the ground that the compensation awarded is on the higher side, the claimants have filed the appeal seeking enhancement of compensation on the ground that the compensation awarded is inadequate and needs enhancement.

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The facts in brief are that the claimants/appellants herein are wife and children of the deceased late Kumarswamy. They filed the claim petition under Section 166 of the Motor Vehicles Act (for short 'the Act’), contending that on 02.03.2001 at about 4 p.m., near Natagal cross on N.H.13, while the deceased was travelling in a bus bearing registration No.KA 25/F 1423 belonging to the Corporation from Gangavati to Bijapur, which was driven in high speed and rash and negligent manner dashed against the speedy lorry bearing registration No.MP 09/KB-7975 which was coming from Kushtagi towards Hospet. It is the case of the claimants that accident took place on fault of both the drivers and a case came to be registered in Cr.No.24/2001 of Koppal

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Rural Police Station. The victim Kumarswamy sustained grievous injuries and he was taken to KIMS Hospital, Hubli and he died on 29.04.2001 while he was under treatment.

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It is the case of the claimants that the deceased was about 35 years earning income of Rs.5,000/- p.m. by doing kirana business and he was contributing the entire sum towards the family requirements and on account of his untimely death, the family has become haywire, having lost his sole bread winner and also lost the social security and hopes and aspirations in life and therefore, they have to be compensated reasonably.

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On account of the death of the deceased, the claimants filed the claim petition before the Tribunal seeking compensation of a sum of Rs.8,50,000/- against the Corporation and the owner and insurer of the lorry. The said claim petition had come up for consideration before the Tribunal on 28.05.2007. The Tribunal after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim

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petition in part, awarding a sum of Rs.5,00,060/- under different heads with 6% interest p.a. from the date of petition till the date of realisation payable by the Corporation. Therefore, being aggrieved by the judgment, the Corporation is in appeal on the ground that it is not liable to pay the compensation and that the compensation awarded is on the higher side whereas the claimants are in appeal before this Court, seeking enhancement of compensation.

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It is the case of the Corporation that the Tribunal has erred in taking the income of the deceased at Rs.5,000/p.m. in the absence of any credible evidence and that the Tribunal was not justified in placing reliance on the spot mahazar Ex.P.3 without considering the fact that the vehicles will move further after the occurrence of the accident and moreover the spot mahazar had been drawn after lapse of one day from the date of accident. As per the spot mahazar, the bus was standing at a distance of 20 feet on the road facing towards north direction on the eastern side of tar road. It ought to have seen that as there was head on collision

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between the two vehicles the police might have removed the vehicles to clear the road for easy and smooth movement of the vehicles. Even otherwise the front portions of both the vehicles have been damaged. By considering the said fact, the Tribunal ought to have held that due to the negligence on the part of the drivers of both the vehicles the alleged accident took place. It ought to have seen that as the driver of the bus died in the said accident, the claimants could not lead any evidence. But, the driver of the lorry has also not been examined to bring on record the manner of accident. Therefore, fixing the entire negligence on the part of the driver of the bus belonging to the Corporation is liable to be set aside.

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Per contra, Sri.Naveen Chatrad, learned counsel appearing for the claimants interalia submits that in the light of the decision of the Apex Court in the case of SMT.SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER (2009 ACJ 1298) the appropriate multiplier applicable is 16 instead of 15 as

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applied by the Tribunal. Therefore, he submitted that the impugned judgment is liable to be modified determining just and reasonable amount towards loss of dependency.

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After careful consideration of the materials available on record, submissions of the learned counsel appearing for the parties and perusal of the impugned order of the Tribunal, the points that arise for our consideration in these appeals

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are:

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i) Whether the Tribunal is justified in fixing the entire negligence on the driver of the bus belonging to the Corporation?

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ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

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Re-Point (i) The occurrence of accident and the resultant death of Kumarswamy are not in dispute. The Tribunal after appreciation of the evidence of PW-1 and the documents at Ex.P.1 to Ex.P.5 and Ex.R.1 to Ex.R.3 has come to the conclusion that the accident took place due to the fault of the driver of the bus belonging to the Corporation and victim

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Kumarswamy died in the accident. The copy of Ex.R.1 to Ex.R.3 showed that respondent Nos.1 and 3 had paid the interim compensation to the claimants. Therefore, the Tribunal recorded a finding holding that the accident took place on the fault of the bus driver belonging to the Corporation and not by the fault of the driver of the lorry. Although, it is the specific case of the Corporation that the driver of the lorry was also negligent as he did not hold valid driving license, except making oral statement, the Corporation has not produced any credible document or rebuttal evidence to substantiate it. Therefore, the Tribunal is justified in fastening the entire liability on the Corporation and the same does not call for interference.

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Reg. Point No.(ii): The Tribunal has rightly assessed the income of the deceased at Rs.4,000/- per month having regard to the fact that the deceased was aged about 35 years and was hale and healthy and doing kirana business. The accident occurred on 02.03.2001 at about 4 p.m. The claimants are none other than the wife and children of the

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deceased Kumarswamy. Hence, the same does not call for interference.

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As per Ex.P.4, P.M.Report, the deceased was aged about 35 years. In the light of the judgment of the Apex Court in the case of SMT.SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, the appropriate multiplier applicable is 16 instead of 15 adopted by the Tribunal. The income of the deceased is rightly assessed at Rs.4,000/- and out of it, if we deduct 1/3^rd towards his personal expenses, it comes to Rs.2,667/- and by applying the multiplier of 16, we award a sum of Rs.5,12,064/(Rs.2,667X12X16) towards loss of dependency. Having regard to the facts and circumstances, we deem it just and reasonable to award Rs.45,000/towards conventional heads i.e., loss of consortium, loss of estate, loss of love and affection and transportation of the dead body and funeral expenses. Hence, the total compensation comes to Rs.5,57,064/as against Rs.5,00,060/- awarded by the Tribunal. There will be

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enhancement of Rs.57,004/- which is rounded off to Rs.57,000/- with interest at 6% p.a.

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For the foregoing reasons, the appeal filed by the Corporation is dismissed as devoid of merits and the appeal filed by the claimants is allowed in part awarding compensation of Rs.57,000/- with interest at 6% p.a. from the date of claim petition till realisation in addition to what has been awarded by the Tribunal.

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The Corporation is directed to deposit the compensation with interest at 6% p.a. from the date of claim petition till the date of realisation within a period of 3 weeks from the date of receipt of copy of this judgment. The enhanced compensation with interest shall be released in favour of claimant No.1 immediately after the deposit is made.

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In view of disposal of main appeal on merits, Misc.Cvl.100688/2009 does not survive for consideration. Hence, it is dismissed as having become infructuous.

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The amount in deposit by the Corporation shall be

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transmitted to the jurisdictional Tribunal forthwith.

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Office to draw the award accordingly.

Sd/-

JUDGE

Sd/JUDGE

Jm/-

The Managing Director v. Smt Kavita

Case brief

What is this about?

What did the court decide?

The Managing Director v. Smt Kavita

Case brief

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