Partly allowed

Yankappa @ Venkappa S/O Gangappa Dalawai, v. the Division Controller

Karnataka HC8 Nov 2019MFA/24108/2012

Case brief

AI extract

What is this about?

The Division Bench allowed two motor accident appeals partly, setting aside the Tribunal's apportionment of negligence placing 20% on the deceased appellant and reducing compensation. The Court reassessed the income and disability percentages in favor of the claimants and enhanced the total compensation amounts awarded to the families while confirming that the KSRTC is liable to pay.

What did the court decide?

Compensation enhanced to Rs.12,21,000 (MFA 24107/2012) and Rs.2,23,232 (MFA 24108/2012) with 6% interest; negligence apportionment on deceased set aside.

Yankappa @ Venkappa S/O Gangappa Dalawai, Vs the… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF JULY 2019

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BEFORE

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THE HON’BLE MR. JUSTICE P.G.M.PATIL

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MFA NOS.24107/2012 (MV) C/W.24108/2012

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MFA NOS.24107/2012 (MV) BETWEEN

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MAHADEVI W/O MAHADEV DALAWAI, AGE: 27 YEARS, OCC: HOUSEHOLD, R/O: AT KUNCHANUR ROAD, TALUK: JAMAKHANDIL, DIST: BAGALKOT.

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GURU S/O MAHADEV DALAWAI, AGE: 7 YEARS, SINCE MINOR REP. BY N/M APPELLANT NO.1.

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BHAGYA D/O MAHADEV DALAWAI, AGE: 3 YEAR & 6 MONTHS, SINCE MINOR REP. BY N/M APPELLANT NO.1.

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GANGAPPA VENKAPPA DALAWAI, AGE: 65 YEAS, OCC: NIL, R/O: AT KUNCHANUR ROAD, TALUK: JAMAKHANDI, DIST: BAGALKOT.

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PARWATI GANGAPPA DALVAI AGE: 55 YEARS, OCC: NIL, R/O: AT KUNCHANUR ROAD, TALUK: JAMAKHANDI, DIST: BAGALKOT.

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... APPELLANTS (BY SRI. SIDDAPPA SAJJAN, ADV.)

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AND

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THE DIVISIONAL CONTROLLER, NWKRTC CORPORATION, NAVANAGAR, BAGALKOT.

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... RESPONDENT

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(BY SMT. P.R. BENTUR, ADV.)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05-05-2012 PASSED IN MVC NO.490/2009 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT.NO.VI, JAMAKHANDI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA NO.24108/2012

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BETWEEN

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YANKAPPA @ VENKAPPA S/O GANGAPPA DALAWAI, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: SAIDAPUR, TQ: JAMAKHANDI, DIST: BAGALKOT.

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... APPELLANT

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(BY SRI. SIDDAPPA SAJJAN, ADV.)

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AND

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THE DIVISIONAL CONTROLLER, NWKRTC CORPORATION, NAVANAGAR, BAGALKOT.

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... RESPONDENT

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(BY SMT.P.R. BENTUR, ADV.)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05-05-2012 PASSED IN MVC NO.491/2009 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT.NO.VI, JAMAKHANDI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimants being aggrieved by the common judgment and award dated 5.5.2012, passed in MVC Nos.490/2009, 491/20019, by the Addl. Senior Civil Judge & MACT, Jamakhandi, have filed these appeals.

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The Division Bench of this Court has

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disposed of MFA No.24106/2012 arising out of same accident in respect of MVC No.489/2009 on 27/11/2013.

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The occurrence of the accident on

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30/10/2008 involving K.S.R.T.C. bus bearing registration No.25/F-2598 and motorcycle

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bearing registration No. KA-29/K-7962 is not in dispute. It is also not in dispute that due to collision of vehicles, Mahesh Poojari died and another person suffered injuries. The Tribunal has recorded the finding against not only the driver of the KSRTC bus, but also Mahesh Poojary for causing of accident on the basis of contributory negligence.

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The appellants have questioned the said finding. They are also seeking

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enhancement of compensation. The Corporation has not questioned the quantum or the finding of negligence. However, as claimants had questioned the said finding, this Court has to re-appraise the evidence.

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The Division Bench of this Court in

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the judgment stated supra, has considered as to the negligence apportioned in the present case on the part of the rider of the motorcycle and KSRTC driver.

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The Division Bench has held that the Tribunal could not have placed the act of negligence on the driver of the motorcycle and that the entire negligence ought to have been attributed to the driver of KSRTC bus and that the driver of the KSRT bus alone is responsible for causing the said accident.

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Therefore, in the present appeals also, it is necessary to hold that the finding of the Tribunal apportioning the negligence on the part of the rider of the motorcycle and thereby awarding compensation to the claimants considering the said negligence is liable to be

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set aside and it is to be held that the

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respondent-corporation is liable to satisfy the award passed in both the claim petitions. Therefore, both the appeals to that extent deserve to be allowed.

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In MFA No.24107/2012, learned

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counsel for the appellants submitted that the Tribunal has considered the income of the deceased at Rs.4,000/-p.m., which ought to have been considered at Rs.10,000/-p.m.

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However, the claimants have failed to produce any cogent evidence to prove the income of the deceased. Therefore, on the basis of the materials available on record, the Tribunal has considered the income of the deceased at Rs.4,000/-. However, the Division Bench of this Court in the aforementioned case has considered

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the income of the deceased at Rs.5,000/- p.m.

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Therefore, it is just and necessary to consider the income of the deceased in the present case also at Rs.5,000/-p.m. for awarding compensation. Accordingly, compensation is reassessed and following just compensation is awarded to the claimants.

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The claimants are entitled for addition of 40% of the income of the deceased towards future prospects in view of the judgment of the Hon’ble Supreme Court in the case of National

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Insurance Ltd. Vs. Pranay Sethi and Others reported in AIR 2017 SCC 5157. Thus, the income of the deceased comes to Rs.7,000/-. Out of this, ¼ has to be deducted towards the personal and living expenses of the deceased. Thereby income of the deceased comes to Rs.5,250/- same has to be multiplied by 12 and 17. Thus, the claimants are entitled for

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compensation of Rs.10,71,000/-(5200X12X17)

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under the head loss of dependency. The claimants are entitled for compensation of Rs.70,000/under the conventional heads. Petitioner Nos.2 and 3 being minor children of the deceased, they are entitled for compensation of Rs.50,000/- each towards loss of love and affection in view of the judgment in the case of National Insurance Ltd. Vs. Pranay Sethi and Others.

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Further, petitioner Nos. 4 and 5

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being the parents of the deceased are entitled for parental consortium of Rs.40,000/- each in view of the judgment of the Hon’ble Supreme Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others .

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Thus, the claimants are entitled for a total compensation of Rs.12,21,000/- as

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against compensation awarded by the Tribunal at Rs.6,49,000/-.

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In MFA No.24108/2012, learned

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counsel for the appellant submitted that the Tribunal has considered the permanent disability of the claimant at 6.67% of the whole body which needs to be enhanced and that the income of the claimant has to be enhanced from Rs.4,000/- to Rs.5,000/- p.m. The Division Bench of this Court in the case stated supra, has considered the income of the deceased in the said case at Rs.5,000/-per month and on the same principle, the income of the petitioner has taken at Rs.5,000/- p.m. for the purpose of awarding compensation. The claimant in order to prove his permanent disability has got examined PW-4. The Tribunal has considered the evidence of PW-4 and disability certificate

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produced at Ex.P70. PW-2 has deposed that the petitioner is suffering from permanent disability of 20% to the right lower limb and 1/3^rd of this comes to 6.67% to the whole body and therefore, disability considered by the Tribunal needs no interference. Considering the income of the claimant at Rs.5,000/-p.m., the compensation is reassessed and following just compensation is awarded:-

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Rs.64,032/-(5000X12X16X6.67%)

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is awarded towards loss of future earnings. The

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tribunal has awarded a sum of Rs.30,500/towards pain and suffering which is enhanced to Rs.40,000/-. The Tribunal has awarded Rs.10,000/towards loss of amenities and future unhappiness. This is enhanced to

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Rs.25,000/-. The compensation awarded by the Tribunal towards medical expenses at

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Rs.72,000/- and Rs.3,200/- towards attendants and extra nourishment and Rs.4,000/- towards conveyance are retained. A sum of Rs.15,000/is awarded towards loss of income during the laid up period.

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Thus, the claimant is entitled for compensation of Rs.2,23,232/as against Rs.1,71,000/- awarded by the Tribunal.

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Thus, the claimants-appellants are entitled for enhancement in the compensation as stated above. In the result, this Court proceed to pass the following:

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ORDER

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Both the appeals are partly allowed.

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Judgment and award dated 5/5/2012 passed in MVC No.490 and 491 of 2019 by the Additional Senior Civil Judge & MACT-VI, Jamkhandi, so

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far as apportioning the negligence to the extent of 20% on the part of the deceased and reducing the compensation as stated in the award is set aside. It is ordered that the respondent-KSRTC is liable to satisfy the award in both the cases.

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In MFA No.24107/2012, the claimants are entitled for total compensation of Rs.12,21,000/- with interest at 6% p.a. from the date of petition till deposit.

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In MFA No.24108/2012, the claimant is entitled for total compensation of Rs.2,23,232/with interest at 6% p.a. from the date of petition till deposit.

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Sd/JUDGE

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Vmb

Yankappa @ Venkappa S/O Gangappa Dalawai, v. the Division Controller

Case brief

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What did the court decide?

Yankappa @ Venkappa S/O Gangappa Dalawai, v. the Division Controller

Case brief

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