The Divisional Controller Vs Smt. Geeta W/O Tammanna Bhajantri

THE DIVISIONAL CONTROLLER, NWKRTC, HIREKERUR DEPOT, THROUGH ITS DIVISIONAL OFFICE, NWKRTC, BELAGAVI DIVISION, BELAGAVI. REPRESENTED BY CHIEF LAW OFFICER, NWKRTC, CENTRAL OFFICE, HUBBALLI.

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…APPELLANT

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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(BY SRI S.C. BHUTI, ADVOCATE)

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AND:

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SMT. KRISHNAWWA W/O. YALLAPPA BAJANTRI, AGE. 71 YEARS, OCC. HOUSEHOLD WORK, R/O. CHIKODI ROAD, AMBEDKAR PLOT, HUKERI, TALUKA HUKERI, DISTRICT BELAGAVI, PRESENTLY AT KANGRALI K H, BELAGAVI-590010.

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SMT. GEETA W/O. TAMMANNA BAJANTRI, AGE. 38 YEARS, OCC. HOUSEWIFE, R/O. CHIKODI ROAD, AMBEDKAR PLOT, HUKERI, TALUKA HUKERI, DISTRICT BELAGAVI-591201.

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3. KUMAR ADITYA S/O. TAMMANNA BAJANTRI,

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AGE. 8 YEARS, OCC. STUDENT,

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KUMAR ADRUSH S/O. TAMMANNA BAJANTRI,

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AGE. 5 YEARS, OCC.

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SINCE, RESPONDENTS NO.3 AND 4 ARE BEING MINORS, REPRESENTED BY THEIR MINOR GUARDIAN NATURAL MOTHER RESPONDENT NO.2.

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…RESPONDENTS

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(BY SRI ASHOK A.NAIK, ADVOCATE FOR R1 (R3 AND R4 ARE MINORS R/B R2))

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 10.01.2023 PASSED IN MVC NO.178/2020 ON THE FILE OF THE X ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.

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IN M.F.A. NO.102300 OF 2023 BETWEEN:

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THE DIVISIONAL CONTROLLER, NWKRTC, NAVANAGAR BAGALKOT, (OWNER OF BUS BEARING REG. NO.KA-27-F-0837 BELONGS TO HAVERI DIVISION). REPRESENTED BY CHIEF LAW OFFICER NWKRTC, CENTRAL OFFICE HUBBALLI.

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…APPELLANT

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(BY SRI S.C. BHUTI, ADVOCATE)

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AND:

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SMT. GEETA W/O. TAMMANNA BHAJANTRI, AGE. 32 YEARS, OCC. H.W.,

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ADITYA

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S/O. TAMMANNA BHAJANTRI, AGE. 7 YEAR, OCC. NIL,

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ADRUSH S/O. TAMMANNA BHAJANTRI, AGE. 4 YEARS, OCC. NIL,

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SINCE, RESPONDENTS NO.2 AND 3 ARE BEING MINORS, REPRESENTED BY THEIR MINOR GUARDIAN NATURAL MOTHER RESPONDENT NO.1

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ALL ARE R/O. AMBEDKAR NAGAR, HUKKERI, TALUKA HUKKERI, DISTRICT BELAGAVI-591201.

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…RESPONDENTS

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(NOTICE TO R1 IS SERVED; R2 AND R3 ARE MINORS REPRESENTED BY R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 09.10.2020 PASSED IN MVC NO.71/2020 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV BAGALKOT, AT BAGALKOT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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Although these appeals are listed for admission, with

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the consent of learned counsel for both the parties, they are heard finally on merits.

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Both the appeals are filed by the North Western Karnataka Road Transport Corporation¹ under Section 173(1) of the Motor Vehicles Act, 1988² . The judgment and award impugned in both the appeals are pertaining to the same accident. Hence, both the appeals are taken up for consideration together.

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MFA No.102298/2023 is filed by the Corporation challenging the judgment and award dated 10.01.2023, passed in MVC No.178/2020, on the file of X Additional District Judge and Additional M.A.C.T, Belagavi³ . MFA No.102300/2023 is filed by the Corporation challenging the

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1 Hereinafter referred to as the ‘Corporation’

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2 Hereinafter referred to as the ‘M.V. Act’

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3 Hereinafter referred to as the ‘Belagavi Tribunal’

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judgment and award dated 09.10.2020, passed in MVC No.71/2020, on the file of Member M.A.C.T No.IV, Bagalkot⁴ .

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The parties will be referred to as per their ranking before the Tribunal, for the sake of convenience.

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The facts in a nutshell leading to the present appeals are that on 13.12.2019 one Tammanna Yallappa Bhajantri⁵ was proceeding in goods lorry bearing registration No.KA-25/C-1736 from Bagalkot to Gaddankeri, when a bus bearing registration No.KA.27/F-0837, owned by the Corporation, came from opposite direction and while in the process of overtaking another vehicle, came from the wrong side of the road and hit the lorry, in which the deceased was traveling, causing the accident in question. Due to the accident, the deceased sustained grievous injuries and he was shifted to the hospital, where he succumbed to the same, the next day, on 14.12.2019.

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4 Hereinafter referred to as the ‘Bagalkot Tribunal’

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5 Hereinafter referred to as the ‘deceased’

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6. The mother of the deceased instituted claim

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proceedings in MVC No.178/2020, on the file of the Belagavi

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Tribunal arraying the Corporation as respondent No.1, the wife and children of the deceased as respondents No.2 to 4. The Corporation entered appearance through its counsel and contested the proceedings by filing statement of objections. The wife of the deceased, who was arrayed as respondent No.2, remained ex-parte. The Belagavi Tribunal appointed a guardian to represent the minor children of the deceased, who were arrayed as respondents No.3 and 4. The claimant was examined as PW.1. ExP1 to Ex.P9 were marked in

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evidence. The driver of bus was examined as RW.1. No documents were marked in evidence. The Belagavi Tribunal, by its judgment and award dated 10.01.2023, partly allowed

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the claim petition and awarded a total compensation of ₹26,94,340/- together with interest at 6% per annum and directed the corporation to pay the compensation. The compensation was apportioned amongst the mother, wife and children of the deceased in the ratio of 30%: 40%:

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15%: 15%. Being aggrieved, the Corporation has preferred MFA No.102298/2023.

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Claiming compensation for death of the deceased, the wife and children of the deceased instituted MVC No.71/2020, before the Bagalkot Tribunal, wherein, the Corporation was arrayed as respondent. Despite service of notice on the Corporation, it remained ex-parte. The wife of the deceased was examined as PW.1. Ex.P1 to Ex.P10 were marked in evidence. No oral or documentary evidence was

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adduced on behalf of the respondents. The Bagalkot Tribunal, by its judgment and award dated 09.10.2020, partly allowed the claim petition and awarded a compensation of ₹20,17,410/- together with interest at 6% per annum. Being aggrieved, the Corporation has preferred MFA No.102300/2023.

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Learned counsel Sri. S.C. Bhuti appearing for the appellant/Corporation in both the appeals contends that all the legal representatives of the deceased were arrayed as parties in MVC No.178/2020, instituted by the mother of the

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deceased before the Belagavi Tribunal. However, t he mother

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of deceased has not been arrayed as a party in MVC No.71/2020 instituted by the wife and children of the deceased before the Bagalkot Tribunal. It is further contended that the Corporation was not aware of proceedings initiated in MVC No.71/2020 and that the Corporation cannot be saddled to pay compensation in both the claim petitions with respect to the same accident. It is further contended that the accident having occurred due to head on collusion between the driver of truck and the driver of bus, the Tribunal ought to have held that the accident occurred due to the contributory negligence of drivers of both the vehicles. It is further contended that, in MVC No.178/2020, future prospects has been awarded at 40% instead of 25%. It is also contended that the quantum of compensation awarded is excessive.

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Per contra, learned counsel Sri. Ashok A. Naik

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appearing for the mother of the deceased justifies the compensation awarded by the Tribunal.

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The submissions of both the learned counsels

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have been considered and the material on record have been

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perused. The questions that arise for consideration is:

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i) “Whether the Corporation is liable to pay compensation in both the claim petitions?

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ii) Whether the finding of the Tribunal that the accident occurred due to rash and negligent driving of the driver of bus is just and proper?”

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iii) Whether the quantum of compensation awarded by the Belagavi Tribunal is just and proper?

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Regarding Question No.(i):

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In MVC No.178/2020 filed by the mother of the

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deceased, the wife and children of the deceased have been arrayed as respondents No.2 to 4. Further, the mother of deceased has not been arrayed as a party in MVC No.71/2020 instituted by the wife and children of the deceased. Admittedly, both the claim petitions i.e., MVC No.178/2020 and MVC No.71/2020 pertain to the same accident dated 13.12.2019, which resulted in death of the deceased. Hence, the adjudication, as to the compensation

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payable for the death of the deceased is required to be made in proceedings, where all the legal representatives of the deceased have been arrayed as parties. Hence, it is just and proper that the adjudication as to the claim for compensation be made in MVC No.178/2020 and the compensation awarded in MVC No.71/2020, be set aside. Hence, the question No.(i) framed for consideration is answered in the ‘negative’.

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Regarding Question No.(ii):

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Pursuant to occurrence of accident, upon a complaint lodged, the jurisdictional police have lodged FIR and after investigation, filed chargesheet against the driver of bus. Although the driver of bus has been examined as RW.1 in MVC No.178/2020, neither the driver of the bus nor the Corporation initiated any proceedings, contending that, the investigation carried out by the police authorities, wherein, chargesheet was filed against the driver of bus, is erroneous/faulty. The Belagavi Tribunal, noticing the fact that the chargesheet has been filed against the driver of bus, has recorded a finding that the driver of bus was negligent in

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causing the accident in question. The Corporation has failed to demonstrate that the said finding recorded by the Belagavi Tribunal is in any manner erroneous and liable to be interfered with by this Court in the present appeal. Hence, the question No.ii framed for consideration is answered in the ‘negative’.

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Regarding Question No.(iii):

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The age of the deceased as per the Aadhar Card (Ex.P9) is 20.07.1979 and the date of accident is 13.12.2019. Hence, the deceased was aged 40 years 5 months as on the date of accident. The deceased was stated to be working as a driver. However, no documents have been produced to demonstrate the income of the deceased. Hence, the income of the deceased has been assessed by the Tribunal by considering the notional income chart followed for settlement of claim petitions in the Lok Adalat conducted by the Karnataka State Legal Services Authority and accordingly the Tribunal has assessed the notional income of the deceased as ₹13,250/-, which is just and proper.

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The deceased, being more than 40 years as on the date of accident, 25% of the income is required to be added towards loss of future prospects, in view of the judgments of Hon’ble Apex Court in the case of N ational

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Insurance Company Limited vs. Pranay Sethi And Others⁶ and in the case of Sarla Verma And Others vs. Delhi Transport Corporation And Another⁷ . Further, the Tribunal has applied the appropriate multiplier of 15, which is just and proper. Having regard to the number of dependents, the Tribunal has deducted 1/4^th towards personal expenses, which is just and proper. Hence, l oss of dependency is re-assessed a s under:

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₹22,35,960/- (₹13,250 + 25% minus 1/4 x 12 x 15)

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There are four claimants i.e., the mother, wife and children of the deceased and they are entitled to compensation under the head of loss of consortium of ₹40,000/- each together with increment of 10%, in terms of the judgment of the Hon’ble Supreme Court in the case of

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6 (2017) 16 SCC 680

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7 (2009) 6 SCC 121

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Magma General Insurance Co. Limited Vs. Nanu Ram &

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Others⁸ , and accordingly loss of consortium is re-assessed as ₹1,76,000/- (Rs.40,000/- + 10% x 4).

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Further, a compensation of ₹15,000/- each is

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awarded under the head ‘loss of estate’ and ‘funeral expenses’ respectively, along with 10% escalation. Hence, a sum of ₹16,500/- each is awarded under the heads of ‘loss of estate’ and ‘funeral expenses’ respectively.

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Thus, the quantum of compensation is

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re-assessed as under:

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Sl. No.	Heads	Amount awarded by the Belagavi Tribunal in MVC No.178/2020 (₹)	Amount awarded by this Court(₹)
1.	Towards loss of dependency.	25,04,340.00	22,35,960.00
2.	Towards loss of estate.	15,000.00	16,500.00
3.	Towards Funeral expenses.	15,000.00	16,500.00
4.	Towards Spousal consortium.	40,000.00	-----
5.	Towards filial consortium.	40,000.00	1,76,000.00
6.	Towards parental consortium.	80,000.00	-----
	Total	26,94,340.00	24,44,960.00

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8 2018 ACJ 2782

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Hence, the claimants are entitled for total compensation of ₹24,44,960/- along with interest at 6% per annum from the date of petition till its realization as against ₹26,94,340/- awarded by the Belagavi Tribunal. Accordingly, question No.(iii) is answered in the ‘partly affirmative’.

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In the result, the following order:

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ORDER

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i) Both the appeals are partly allowed;

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ii) The judgment and award dated 09.10.2020, passed in MVC No.71/2020, on the file of Member M.A.C.T No.IV, Bagalkot, is set aside;

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iii) The judgment and award dated 10.01.2023, passed in MVC No.178/2020, on the file of X Additional District Judge and Additional M.A.C.T, Belagavi, is modified as under. In all other respects the award of the Tribunal shall remain unaltered:

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a) The claimants are entitled to a total

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compensation of ₹24,44,960/- along with

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interest at 6% p.a. from the date of petition till its realization as against ₹26,94,340/awarded by the Belagavi Tribunal;

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b) The appellant/Corporation shall pay the compensation awarded together with accrued interest;

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c) The compensation deposited by the appellant/Corporation in both the appeals shall be transmitted to the X Additional District Judge and Additional M.A.C.T, Belagavi for disbursement in terms of this order. The Corporation shall deposit the balance compensation within four weeks;

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d) The compensation awarded together with accrued interest shall be apportioned between the parties in MVC No.178/2020 i.e., the mother (claimant), the wife (respondent No.2), the daughter (respondent No.3) and

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the son (respondent No.4) in the ratio of 40% : 20% : 20% : 20% respectively;

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e) 50% of the compensation payable to claimant (mother) and respondent no.2 (wife) shall be disbursed and the balance 50% shall be kept in a fixed deposit in any nationalized bank for a period of 3 years, upon expiry of which, the same shall be released without any further orders from the Court;

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f) The compensation payable to respondents No.3 and 4 (children) shall be kept in a fixed deposit until they attains majority. After attaining majority, 50% of the compensation amount together with accrued interest shall be released in favour of the said respondents No.3 and 4 and the balance 50% shall be kept in a fixed deposit for a further period of 3 years, upon expiry of which, the same shall be released in favour of respondents No.3 and 4 without any further orders from the Court;

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