Disposed

The Divisional Controller, v. Smt. Asmita W/O. Shivaji Thorat

Karnataka HC16 Oct 2024MFA/102318/2022

Case brief

AI extract

What is this about?

Cross-appeals by MSRTC and claimants against a motor accident compensation award for the death of a motorcyclist hit by an MSRTC bus. The High Court confirmed the bus driver's negligence, reassessed loss of dependency using notional income of Rs.13,750, added 40% future prospects, multiplier 15, consortium and escalated conventional amounts.

What the court decided

AI extract

The Divisional Controller, Vs Smt. Asmita W/O… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:14988-DB MFA No. 102318 of 2022 C/W MFA No. 104004 of 2023

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

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AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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MISCELLANEOUS FIRST APPEAL NO.102318 OF 2022 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.104004 OF 2023 (MV-D)

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IN MFA NO. 102318 OF 2022:

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BETWEEN:

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THE DIVISIONAL CONTROLLER, M.S.R.T.C, SANGLI, DIVISION, SANGLI, STATE: MAHARASHTRA.

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…APPELLANT

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(BY SRI. NAMAZIABDUL SATTAR RAHIMANSAHEB, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.10.24 10:32:29 +0530

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SMT. ASMITA W/O. SHIVAJI THORAT, AGE: 37 YEARS, OCC: HOUSEHOLD WORKS.

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KUMARI. AMRUTA D/O. SHIVAJI THORAT, AGE: 19 YEARS, OCC: STUDENT.

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KUMAR VISHWAJITH S/O. SHIVAJI THORAT AGE: 18 YEARS, OCC: STUDENT.

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KUMARI AKSHATA D/O. SHIVAJI THORAT, AGE: 16 YEARS, OCC: STUDENT, RESPONDENT NO. 4 BEING MINORS R/BY THEIR NATURAL MOTHER RESPONDENT NO.1.

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SHRI. NAMADEV S/O. MAHADEV THORAT AGE: 88 YEARS, OCC: NIL.

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NC: 2024:KHC-D:14988-DB MFA No. 102318 of 2022 C/W MFA No. 104004 of 2023

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SMT. AKKATAI W/O. NAMADEV THORAT AGE: 80 YEARS, OCC. NIL,

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ALL ARE R/O. SONSAL, TQ: KADEGAON, DIST: SANGLI AND ALSO AT BHALAWANI, TQ: VITA, DIST: SANGLI, NOW AT C/O. MALIKAJAN MAHALINGPUR, BEHIND GIRLS HOSTEL, ATHANI-591304, DIST: BELGAVI.

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…RESPONDENTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R2, R3, R5 & R6; R4 IS MINOR REP. BY R1; NOTICE TO R1 IS AWAITING VIDE ORDER DATED 24.09.2024)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 13.04.2022 PASSED IN MVC NO.346/2020 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI, AWARDING COMPENSATION OF Rs.27,43,920/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION.

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IN MFA NO. 104004 OF 2023:

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BETWEEN:

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KUMARI. AMRUTA D/O. LATE SHIVAJI THORAT, AGE: 20 YEARS, OCC: STUDENT.

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KUMAR. VISHWAJITH S/O. SHIVAJI THORAT, AGE: 19 YEARS, OCC: STUDENT.

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KUMARI. AKSHATA D/O. SHIVAJI THORAT, AGE: 17 YEARS, OCC: STUDENT,

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SINCE THE APPELLANT NO.4 IS MINOR AND THEREBY SHE IS R/BY HER NATURAL GUARDIAN GRANDFATHER - APPELLANT NO.4 HEREIN. SINCE, THE NATURAL MOTHER APPELLANT NO.1 HAS GOT REMARRIED DURING PENDENCY OF THE CLAIM PETITION.

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SHRI. NAMDEV S/O. MAHADEV THORAT, AGE: 89 YEARS, OCC: AGRICULTURE (NOW NIL).

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SMT. AKKATAI W/O. NAMDEV THORAT, AGE: 80 YEARS, OCC: HOUSEHOLD WORK,

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ALL APPELLANTS RESIDING AT SONSAL, TALUKA: KADEGAON, DIST: SANGLI, AND ALSO AT BHALAWANI, TALUKA: VITA, DIST: SANGLI.

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NOW RESIDING AT C/O. MALIKAJAN MAHALINGPUR, BEHIND GIRLS HOSTEL, ATHANI, DIST: BELAGAVI-591304.

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…APPELLANTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER M.S.R.T.C. SANGLI DIVISION, (MAHARAHSTRA STATE ROAD TRANSPORT CORPORATION), SANGLI, MAHARASHTRA STATE-416416.

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SMT. ASMITA W/O. LATE SHIVAJI THORAT AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O. BHALAWANI VILLAGE, TALUKA: VITA, DISTRICT: SANGLI, MAHARASHTRA STATE-415311.

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…RESPONDENTS (BY SRI. A.S.R.NAMAZI, ADVOCATE FOR R1; NOTICE TO R2 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 13.04.2022 PASSED IN MVC NO. 346/2020 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT ATHANI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)

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M.F.A. No.102318/2022 is filed by the MSRTC and M.F.A. No.104004/2023 is filed by the claimants, challenging the judgment and award dated 13.04.2022 passed by the Additional Senior Civil Judge and JMFC and Additional MACT, Athani in M.V.C. No.346/2020.

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Facts giving rise to the filing of the appeals briefly stated are that on 07.02.2020 at about 10:45 a.m., the deceased Shivaji S/o. Namdeve Thorat was proceeding alongwith his daughter – petitioner No.4, on his motorcycle bearing registration No.MH-10/AR-7709. When they came infront of Raj Petro Pump, Nandare Village, the driver of MSRTC bus bearing registration No.MH-14/BT-1071 which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries. He was shifted to Government Hospital, Sangli and thereafter shifted to Bharati Hospital, Sangali and during the treatment, he succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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Upon service of notice, the respondent appeared through counsel and filed written statement denying the averments made in the claim petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The Tribunal, by impugned judgment and award has partly allowed the claim petition and held that the claimants are entitled to a compensation of Rs.27,46,920/- along with interest at the rate of 9% p.a. and directed the respondent MSRTC to deposit the compensation amount along with interest. Being aggrieved, the present appeals have been filed.

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Sri.Namaziabdul Sattar Rahimansaheb, the learned counsel appearing for the MSRTC has raised the following contentions:

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Re. Negligence:

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The accident occurred due to the negligence of the deceased himself. He further contended that the deceased was

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driving the motorcycle in the middle of the road without following traffic rules and he was using the mobile phone while riding the motorcycle and dashed against the MSRTC bus, the same is evident from the sketch and also the evidence of PW5, the same has not been considered by the Tribunal. The Tribunal is erred in holding that the driver of the bus alone is negligent in causing the accident.

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Re. Quantum of compensation:

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He has contended that even though the claimant has claimed that he was earning Rs.20,000/- per month, he has not produced any document to establish the same. Under these circumstances, the notional income assessed by the Tribunal at Rs.14,500/- is on higher side.

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Lastly he has contended that considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on higher side. Hence, he sought for allowing the appeal filed by the MSRTC.

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On the other hand, Sri.Sanjay S. Katageri, the learned counsel appearing for the claimants has raised the following counter contentions:

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Re. Negligence:

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The accident is occurred due to the negligence of the driver of the MSRTC bus. He came from opposite direction and proceeded extreme right side of the road and dashed against the motorcycle. He further contended that immediately after the incident, the complaint has been lodged against the driver of the bus and the Police has registered an FIR against the driver of the bus. After thorough investigation, charge sheet has been filed against the driver of the bus. The Tribunal after considering the sketch, complaint, IMV report has rightly held that the driver of the bus alone is negligent in causing the accident.

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Re. Quantum of compensation:

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Firstly, the claimants claim that at the time of the accident, the deceased was earning Rs.20,000/- per month. The Tribunal has assessed notional income of the deceased at Rs.14,500/- per month which is on lower side.

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Secondly, as per the driving licence of the deceased at Ex.P11, the date of birth of the deceased was 10.11.1980. As on the date of the accident, he was aged about 39 years. The

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Tribunal has erred in considering the age of the deceased as 40, on the basis of the postmortem report.

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Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -vPRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards ‘future prospects’ should be the warrant where the deceased was below the age of 40 years. The same may be considered.

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Thirdly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] , claimants are entitled for compensation of Rs.40,000/- under the head of ‘loss of filial consortium/loss of love and affection’. With the above contentions, he prays for allowing the appeal filed by the claimants.

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Heard the learned counsel for the parties. Perused the judgment and award.

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Re. Negligence:

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The specific case of the claimants is that on 07.02.2020 at about 10:45 a.m., the deceased Shivaji was proceeding on his motorcycle bearing registration No.MH-10/AR-7709 at Nandare Village. When they reached near Raj Petrol Pump, the driver of the MSRTC bus bearing registration No.MH-14/BT1071 drove his vehicle in rash and negligent manner and dashed to the motorcycle of the deceased. Due to the impact, the said Shivaji fell down and suffered injury and succumbed to the injury on 08.02.2020. The claimants are legal representatives of the deceased, have filed the claim petition under Section 166 of the Motor Vehicles Act. To prove their case, claimant No.5 has been examined as PW1 and they have produced 11 documents.

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Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or

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criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM –v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon’ble Apex Court has held as hereinbelow:

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“25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

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PW1 in his evidence he has reiterated the statement made in the claim petition. He has contended that the accident is occurred due to the negligence of driver of the bus. On the

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basis of the complaint lodged by PW1, the Police has registered an FIR against the driver of the bus and drawn the mahazar and prepared the sketch as per Ex.P5. It is very clear from the sketch that the deceased was travelling in the motorcycle from Nandare to Karnal. The offending vehicle was coming from opposite direction. The width of the road is 23 feet. The accident is occurred west side of the road. Therefore, it is very clear that the driver of the bus has come extreme right side of the road and dashed against the motorcycle. Considering the evidence of PW1, FIR, Mahazar, sketch, charge sheet and IMV report, the Tribunal has rightly held that the driver of the bus has alone is negligent in causing the accident.

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Re. Quantum of compensation:

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Firstly, the claimants claim that the deceased was doing milk vending business and earning Rs.20,000/- per month, they have not produced any documents to establish the same. Under these circumstances, notional income has to be assessed considering the guidelines issued by the Karnataka Legal Services Authority. For the accident occurred in the year 2020, the notional income is fixed at Rs.13,750/-. Hence, monthly income of the deceased is to be considered as Rs.13,750/-. As

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per Ex.P11, date of birth of the deceased was 10.11.1980. As on the date of the accident, he was aged about 39 years.

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In view of the judgment of Apex Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in [AIR 2017 SC 5157] , 40% of the income of the deceased is to be added for future prospects. The Tribunal has rightly deducted 1/4^th of the income of the deceased for personal expenses. The multiplier applicable to that age group is 15. Accordingly, the loss of dependency has been reassessed as follows:

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Rs.13,750 + 40% - ¼ X 12 X 15 = Rs.25,98,840/-

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In view of the law laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited (supra) , the claimants being the wife, three children and parents of the deceased Shivaji, are entitled for compensation of Rs.40,000/- each towards “loss of consortium” i.e., Rs.2,40,000/- (Rs.40,000 X 6).

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The accident is of the year 2020. In view of the ratio laid down in the case of PRANAY SETHI (supra) , the Apex Court enhanced the compensation on conventional heads, viz. , loss of

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estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively and the said amounts should be enhanced at the rate of 10% in every three years. Now almost three years have been elapsed and therefore, the claimants are entitled for 10% escalation on loss of estate, loss of consortium and funeral expenses. Hence, they are entitled for Rs.15,000/- + 10% = Rs.16,500/- towards loss of estate, Rs.2,40,000/- + 10% = Rs.2,64,000/- towards loss of consortium, and Rs.15,000/- + 10% = Rs.16,500/- towards funeral expenses. In other heads, the compensation awarded by the Tribunal is just and reasonable.

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24. Thus, the claimants are entitled to the re-assessed

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compensation as follows:

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Towards loss of dependency	Rs.25,98,840/-
Towards funeral expenses and transportation charges	Rs.16,500/-
Towards loss of consortium	Rs.2,64,000/-
Towards loss of estate	Rs.16,500/-
Total	Rs.28,95,840/-

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In the result, we pass the following:

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ORDER

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a) The appeals are disposed of . The judgment of the Claims Tribunal is modified.

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b) After confirming the negligence on the part of the driver of the offending MSRTC bus, the claimants are entitled to a compensation of

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Rs.28,95,840/- .

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c) The MSRTC is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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