Dismissed

The Divisional Controller Nwkrtc v. Smt.Bhimavva W/O. Yallappa Honnikolla

Karnataka HC4 Oct 2023MFA/100598/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka, Dharwad Bench dismissed the first appeal filed by Northwest Karnataka Road Transport Corporation (NWKRTC). The court held that the findings of the Tribunal regarding liability and the quantum of compensation awarded to the deceased's dependents were legal and reasonable, rejecting the arguments of sole negligence or procedural infirmities.

What did the court decide?

The appeal stands dismissed in its entirety; the impugned judgment and award of the Tribunal is affirmed.

The Divisional Controller Nwkrtc Vs Smt.Bhimavva… — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 100598 OF 2019 (MV)

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BETWEEN:

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THE DIVISIONAL CONTROLLER, NWKRTC, BELAGAVI, (OWNER OF BUS BEARING NO. KA-22/F-1906), REPRESENTED BY CHIEF LAW OFFICER.

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…APPELLANT

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(BY SRI S.C. BHUTI, ADVOCATE)

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AND:

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.09 15:22:10 +0530

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SMT. BHIMAVVA W/O. YALLAPPA HONNIKOLLA, AGE:39 YEARS, OCC:HOUSEHOLD WORK, R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130.

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KUMAR MARUTI S/O. YALLAPPA HONNIKOLLA AGE:18 YEARS, OCC:STUDENT, R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130.

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KUMARI SIDDAVVA @ SIDDAMMA D/O. YALLAPPA HONNIKOLL, AGE:16 YEARS, OCC:STUDENT,

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NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130.

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KUMARI LAXMI D/O. YALLAPPA HONNIKOLLA, AGE:13 YEARS, OCC:STUDENT, R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130.

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KUMARI SANGEETA D/O. YALLAPPA HONNIKOLLA, AGE:9 YEARS, OCC:STUDENT, R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130. (SINCE RESPONDENT NOS. 3 TO 5 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER I.E RESPONDENT NO.1)

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SMT BASAVVA W/O. SHIDDAPPA HONNIKOLLA, AGE:62 YEARS, OCC:HOUSEHOLD, R/O: BANNUR, TAL:RAMDURG, DIST:BELAGAVI-591130.

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…RESPONDENTS

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(BY SRI BASAVARAJ BYAKOD, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25.10.2018 PASSED IN MVC NO.2634/2017 ON THE FILE OF THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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- 3 - NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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JUDGMENT

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Northwest Karnataka Road Transport Corporation has preferred this appeal against the judgment and award dated 25^th October, 2018 passed in MVC No.2634 of 2017 by the XI Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi (for brevity, hereinafter referred to as the “Tribunal”).

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For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

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Brief facts of the case are that, on 18^th June, 2017 deceased Yallappa Honnikolla was proceeding on motorcycle bearing Registration No.KA-24/V-4652 from Ramdurga to Salahalli. At about 6.45 pm, when Yallappa came near the farm house of Malijirao Govindrao Suryavanshi within the limits of Bannur village, at that time the driver of NWKRTC Bus bearing Registration No.KA-22/F-1906 came from opposite side in a very high speed and rash and negligent manner and having lost control over his vehicle dashed against the motorcycle due to which Yallappa sustained grievous injuries and succumbed to

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same. Body was shifted to Government Hospital at Salahalli and after conducting post-mortem, the body was handed over to the petitioners. It is contended that prior to accident, the deceased was aged 42 years and was very hale and healthy. The deceased was a major and was earning Rs.35,000/- per month. Petitioner No.1 has lost her husband; and petitioners No.2 to 4 have lost their father and are deprived of educational prospects. Petitioner No.5 has lost her love and affection of her son. Respondent NWKRTC being the owner of the bus is liable to pay the compensation and accordingly filed claim petition.

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Pursuant to issuance of summons, respondent appeared though its counsel and filed detailed statement of objections specifically denying the contents of the claim petition as false, frivolous and vexatious. Further, it was denied accident caused as a result of rash and negligent driving of the bus, so also, it is stated that the accident caused due to the rash and negligent riding of the motorcycle by its rider. It is further stated that the driver of the bus noticing the rider of the motorcycle riding in a rash and negligent manner had stopped the bus, but the rider came in speed and dashed to front right side corner of the bus. It is also contended that the rider of the

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NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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motorcycle writ appeal not having driving licence. Accordingly,

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sought for dismissal of claim petition.

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In view of the rival pleadings, the Tribunal

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formulated issues for its consideration:

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"1. Whether the petitioners prove that on 18/06/2017 at about 06.45 p.m. on Salahalli-Ramadurga road, near the Farm house of Malojirao Govindrao Suryavanshi, one Sri. Yallappa S/o Shiddappa Honnikolla died in the accident occurred due to the rash or negligent driving of the bus bearing No.KA-22/F-1906?

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2. Whether the respondent proves that accident in question occurred only due to rash or negligent riding of Motorcycle bearing No.KA-24/V-4652?

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3. Whether the petitioner was the Dependant of deceased Sri. Yallappa S/o Shiddappa Honnikolla?

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4. Whether petitioner is entitled for compensation? If so, at what amount and from whom?

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5. What order or award?"

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To prove the case, petitioners examined PW1 and

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got marked eleven documents as Exhibits P1 to P11. Respondents adduced evidence of RW1 and go marked four documents as Exhibits R1 to R4.

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Upon hearing the leaned counsel for the parties, the

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Tribunal answered issues as under:

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Issue No.1:- In the Affirmative

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Issue No.2:- In the Negative Issue No.3:- In the Affirmative Issue No.4:- Partly in the Affirmative Issue No.5:- As per final order for the Following;

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In view of the above finding, Tribunal allowed the claim petition in part and awarded compensation of Rs.20,40,000/- with interest at the rate of 6% per annum from the date of petition till realisation.

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Being aggrieved by the impugned judgment and award, NWKRTC has preferred this appeal seeking interference of this Court in this appeal.

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Learned counsel for the appellant submits that the Tribunal has erred in awarding excessive compensation fastening entire liability upon the appellant and the same is liable to be set aside. He submits that the panchanama and other documents produced by appellants could not have been relied upon by the court below. It is further submitted that to prove the negligence of the deceased, the driver of the bus has

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been examined as RW1 and also produced Exhibits R1 to R4 and Exhibit P4-IMV report shows that the deceased himself was negligent. The Tribunal without considering the evidence on record has erroneously come to the conclusion that the driver of the bus was responsible for alleged accident. It is also submitted that the deceased has no driving licence and was not wearing headgear and the accident occurred due to sole negligence of the deceased. But the Tribunal without considering the evidence on record has wrongly fastened the liability on the NWKRTC which is illegal and arbitrary. Further it is submitted that the Tribunal has erroneously considered the income of the deceased at Rs.12,000/- and added 40% future prospects. Hence, on all these grounds he sought to allow the appeal.

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As against the same, the learned counsel appearing the claimants submits that the Tribunal has rightly given its finding that accident has occurred due to rash and negligent act on the part of the drive of NWKRTC bus, however, Tribunal has not awarded judgment and proper compensation and accordingly, sought for enhancement of compensation.

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8 - NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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Having heard the learned counsel for the appellant, the following points would arise for our consideration in this appeal:

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Whether the appellant-NWKRTC has made out a ground to interfere with the impugned judgment and award as to liability of NWKRTC as also on the quantum of compensation?

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What order or award?

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Our answer for the above points are as under:

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Point No.1: in the negative

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Point No.2: as per the final order

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Accident is not in dispute and the death of the

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deceased in the accident is also not in dispute. PW1-Smt. Basavva has deposed in her evidence as the accident as alleged in the claim petition. Apart from oral evidence she has produced documents. On perusal of the same, it is clear that on the basis of complaint filed by one Bheemavva Yallppa Honnikal, Katkol Police have registered case in Crime No.114 of 2017 against the driver of the bus bearing Registration No.KA22/F-1906 for the offence punishable under Section 279 and 304A of Indian Penal Code and submitted First Information

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Report to the Court. Thereafter, the police conducted spot panchanama in the presence of panchas and obtained postmortem report, MV report and recorded the statement of witnesses and on thorough investigation submitted charge sheet for the commission of offence punishable under Section 279 and 304A of Indian Penal Code against the driver of NWKRTC bus. During the course of cross-examination of PW1, the respondents have not disputed the charge sheet submitted by the Investigating Officer. RW1-the driver of the bus, has stated that the accident occurred due to sole negligence act of the deceased rider. But during cross-examination, he has clearly admitted that he has not taken any steps against the rider of motorcycle and without producing any legal evidence before the Court, respondents have set up defence that the accident has not occurred due to the rash and negligent act on the part of the driver of the bus. The Tribunal has rightly appreciated the evidence on record in accordance with law and has given a finding that the accident occurred due to negligent act on the part of the driver of the bus. On re-appreciation, reexamination and reconsideration of the evidence on record, we do not find any illegality/legal infirmity to interfere as to the

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10 - NC: 2023:KHC-D:11747-DB MFA No. 100598 of 2019

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liability of NWKRTC. Hence, we answer Point No.1 in the negative.

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Regarding Point No.2:

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As regards quantum of compensation is concerned, the Tribunal, at paragraph 21 to 28 has observed as under:

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“21. Issue No.4: The petitioners are the dependents of the deceased. The petitioners have sought compensation of Rs.50 lakhs for the death of Yallappa in the accident. I therefore determine the loss of dependency and the amounts under the various conventional heads as follows:

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22 . The petitioners have contended that the deceased was aged 42 years at the time of accident and was working as mason. PW.1 in her affidavit in lieu of examination in chief has stated that her deceased son was working as mason at LEO Infrastructure, JK Cement, Muddapur, Tal Mudhol, Dist: Bagalkot and was earning Rs.15,000/ per month. That in support of her said contention, PW.1 has produced Ex.P7 which is the identity card issued by LEO Infrastructure, JK Cement, Muddapur, Tal Mudhol, Dist: Bagalkot. However, apart from said identity card, the petitioners have not produced any other document to prove the avocation and income of the deceased. Hence considering the year of the accident, age and avocation of the deceased, the notional income of the deceased can be considered at Rs.12,000/ per month.

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23 . The petitioners have contended that the deceased was aged 42 years at the time of accident and have produced ration card at Ex.P9 in support of said contention. As per said ration card, the deceased was aged 39 years as on 20/11/2014. However, apart from said document, no other document has been produced by the petitioners in order to prove the age of the deceased. As per Ex.P5 post mortem report, the age of the deceased has been mentioned as 45 years. Hence it is proper to consider the age of the deceased as falling between 40 to 45 years and the multiplier to be considered as against the age of the deceased is 14 as per the tabulation given in Sarla Verma’s case reported in 2009(3) Civil Law Journal 482(SC) .

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24 . The petitioner further contended that the petitioners are entitled for loss of future income. The petitioners have in this regard placed reliance on a decision of the Apex Court in Hem Raj Vs. Oriental Insurance Co.Ltd. And Others in 2018 ACJ 5 . The Apex Court in the said case hs held as follows:

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“We are of the view that there can not be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing.”

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25 . The aforesaid judgment has been followed by the Hon'ble High Court of Karnataka in the case of the Managing Director, NWKRTC, Hubli Vs. Kavita

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Dyanadev Hitane and Others in M.F.A. No.22483/2012 (MV) dated 02/03/2018 and has held as follows:

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“However, the Apex Court has answered this point saying that there cannot be any distinction between the person earning regular salary and the person earning variable wages even when such wages are measured by notional values. Therefore, the contention of the counsel for the NWRTC is liable to be rejected and that of the counsel for the claimants is entitled to be accepted.”

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26 . Hence considering the aforesaid principles laid down by the Hon’ble apex court, the loss of dependency is considered as follows: The petitioner is entitled for addition of 25% of her income while considering loss of dependency. Thus, the annual income of the deceased can be taken as

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Rs.15,000(12,000+3,000)X12=1,80,000/. As the number of dependents are 6, 1/4th of the said income has to be deducted towards the personal expenses of the deceased which comes to Rs.1,35,000/. Further, multiplying the same with the appropriate multiplier, 14, the loss of dependency comes to Rs.18,90,000/. Hence the petitioners are entitled for an amount of Rs.18,90,000/ under the head loss of dependency .

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27 . As per decision in National Insurance Company Ltd. VS. Pranay Sethi And Others, SLP (Civil) No.25590/2014 D.D.31/10/2017, the petitioners are also entitled for the compensation under

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the conventional heads, such as consortium, transportation of body, funeral expenses, obsequies ceremony and loss of estate. In the aforesaid decision, the Hon'ble Apex Court in para No.61 has determined the amounts to be awarded under the aforesaid heads. The petitioner No.1 being the wife of the deceased is entitled for consortium of Rs.40,000/. Similarly, the petitioners are entitled for a sum of Rs.15,000/ under the head of transportation of body and funeral expenses and a further sum of Rs.15,000/ under the head loss of estate.

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26 . Further the petitioners No.2 to 5 are the minor children of the deceased. Due to sudden death of the deceased, the petitioners no.2 to 5 have lost love and affection of their father and also financial security. Hence the petitioners No.2 to 5 are entitled for loss of love and affection as a result of the death of their father. Hence I award a sum of Rs.80,000/ under the head of loss of love and affection.

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28 . Thus the petitioners are entitled for

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compensation under the various heads as follows:

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1	Loss of dependency	Rs. 18,90,000
2	Transportation of dead body and funeral expenses.	Rs. 15,000
3	Loss of love and affection	Rs. 80,000
4	Loss of Estate	Rs. 15,000
5	Loss of consortium	Rs. 40,000
	*Total*	*Rs. 20,40,000/-*

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Considering the age occupation of the deceased, the Tribunal has rightly assessed the notional income of the deceased at Rs.12,000/- per month which is quite reasonable. On re-examination of the finding of the Tribunal, we do not find any ground to interfere with the finding of the Tribunal as regards quantum of compensation. In the result, appeal stands dismissed.

Sd/JUDGE

Sd/JUDGE

LIST NO.: 1 SL NO.: 31

The Divisional Controller Nwkrtc v. Smt.Bhimavva W/O. Yallappa Honnikolla

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The Divisional Controller Nwkrtc v. Smt.Bhimavva W/O. Yallappa Honnikolla

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