Smt.Hashmata Banu Vs the Managing Director

@ IMTIAZ AHMAD SHEKH, AGED 6 YEARS, OCC: STUDENT, SINCE APPELLANT NO.2 AND 3 ARE MINORS, R/BY THEIR NATURAL MOTHER, M/G I.E. APPELLANT NO.1. APPELLANTS NO.1 TO 3 ARE R/O. ISLAMPUR, 2ND CROSS, HUBBALLI-580024.

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RAJIYABEGUM D/O. UMARSAB KUMBAR, AGED 24 YEARS, OCC: NIL, R/O. KUMBAR ONI, HAVERI PETH, DHARWAD-580001,

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NC: 2025:KHC-D:11409-DB MFA No. 103209 of 2019 C/W MFA No. 102676 of 2019

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HC-KAR

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AT PRESENT ALL ARE RESIDING AT HAVERI PETH, DHARWAD-580001.

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…APPELLANTS

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(BY SRI. HARISH S. MAIGUR, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR, N.W.K.R.T.C., HUBBALLI DIVISION, HUBBALLI AND SELF INSURANCE FUND, HUBBALLI-580030.

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…RESPONDENT

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(BY SRI. S. C. BHUTI, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED IN M.V.C. NO.716/2017, ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM, AT: DHARWAD, DATED 15.03.2019 BY ALLOWING THIS APPEAL WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO.102676 OF 2019

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BETWEEN:

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THE MANAGING DIRECTOR N.W.K.R.T.C, HUBBALLI DIVISION, HUBBALLI AND SELF INSURANCE FUND, HUBBALLI, 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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SMT. HASHMATA BANU, W/O. IMTIYAJ @ IMTIAZ AHMAD SHEKH, AGE: 30 YEARS, OCC: HOUSEWIFE,

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NC: 2025:KHC-D:11409-DB MFA No. 103209 of 2019 C/W MFA No. 102676 of 2019

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HC-KAR

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R/O. ISLAMPUR, 2ND CROSS,

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HUBBALLI-580005.

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1. UMARASAB S/O. IMTIYAJ @ IMTIAZ AHMAD, SHEKH, AGE: 9 YEARS, OCC: STUDENT, R/O. ISLAMPUR, 2ND CROSS, HUBBALLI-580005.

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IMRAN S/O. IMTIYAJ @ IMTIAZ AHMAD SHEKH, AGE: 6 YEARS, OCC: STUDENT, R/O. ISLAMPUR, 2ND CROSS, HUBBALLI-580005.

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SINCE RESPONDENT NO.2 AND 3 ARE MINORS THEY ARE R/BY THE RESPONDENT NO.1 AS THEIR NATURAL MOTHER AND THEIR NEXT FRIEND.

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RAJIYABEGUM D/O. UMARSAB KUMBAR, AGE: 24 YEARS, OCC: NIL, R/O. KUMBAR ONI, HAVERI PETH, DHARWAD-580001. AT PRESENT ALL ARE RESIDING AT: DHARWAD.

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…RESPONDENTS

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(BY SRI. HARISH S. MAIGUR, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE COURT OF I ADDL. SENIOR CIVIL JUDGE AND CJM., AT: DHARWAD IN MVC NO.716/2017 DATED 15.03.2019 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND

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NC: 2025:KHC-D:11409-DB MFA No. 103209 of 2019 C/W MFA No. 102676 of 2019

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HC-KAR

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

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MFA No.103209/2019 is filed by the appellants/claimants seeking enhancement of compensation, whereas, MFA No. 102676/2019 is filed by the NWKRTC/Corporation challenging the judgment and award dated 15.03.2019 passed in MVC No.716/2017 by the I Additional Senior Civil Judge and CJM, Dharwad (for short, ‘Tribunal’).

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2. Brief facts leading to filing of these appeals are that, on 29.10.2017, one Imtiyaj @ Imtiyaz Ahmed was travelling to Hubli to meet his family. On the said date, the deceased boarded a bus at Dharwad and got down at Hubli Old Bus Stand. While he was attempting to exit the bus stand premises, a bus bearing Registration No. KA-49-F-1581 driven by its driver in a rash and negligent manner dashed the deceased and the right-side front wheel of the bus ran over the shoulder and arms of the deceased. Due to the severe impact, he sustained grievous injuries and was immediately shifted to KIMS Hospital, Hubli, where he succumbed to the injuries. The claimants, being the

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legal dependants of the deceased, filed a claim petition before the Motor Accident Claims Tribunal seeking compensation.

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3. The Respondent/Corporation filed its written

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statement denying the averments made in the claim petition. It was contended that the accident did not occur due to the rash and negligent driving of the driver of the bus in question as the driver of the bus was operating it at a moderate speed while adhering to all traffic rules and regulations. It was further contended that the deceased was under the influence of alcohol at the time of the incident and acted negligently, thereby contributed to the accident. The Respondent also denied the age, income, and avocation of the deceased as stated in the claim petition, and prayed for dismissal of the same.

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4. The Tribunal recorded the evidence, claimant No.1 examined herself as PW.1 and got marked Exs.P.1 to P.10. The respondent/Corporation examined the driver of the bus as RW.1 and no documents were marked. The Tribunal on appreciation of oral and documentary evidence on record, awarded total compensation of Rs.17,87,500/- along with interest at 9% per annum after deducting interim deposit of Rs.15,000/- paid by the

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HC-KAR

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respondent to the claimants. Being aggrieved, both the claimants and the Corporation are before this Court challenging the quantum of compensation.

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5. Sri. Harish S.Maigur, learned counsel appearing for the appellants/claimants submits that the Tribunal has erred in assessing the income of the deceased at Rs.10,000/- per month. The deceased was a mason by avocation working under various contractors & engineers and was the only earning member of the family; hence, he seeks to reassess the income of the deceased. It is also submitted that the Tribunal has awarded meager compensation under other heads and is required to be enhanced. Thus, he seeks to allow the appeal.

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6. Sri. S.C.Bhuti, learned counsel appearing for the Corporation submits that the Tribunal taking note of the fact that the claimants have not produced any evidence with regard to the income of the deceased, has rightly assessed the income of the deceased. It is submitted that the Tribunal failed to appreciate the fact that the deceased who was the pedestrian was required to observe duty of care while going out from the bus stand and in the absence of such act, the Court is required to consider the

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aspect of contributory negligence on the part of the deceased to certain extent. It is further submitted that the award of interest at the rate of 9% per annum by the Tribunal is exorbitant and without any reason. It is also submitted that the Corporation has paid the interim deposit of Rs.15,000/-. The said amount has been rightly deducted by the Tribunal which does not call for any interference. Hence, he seeks to allow the appeal filed by the Corporation.

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7. We have heard the arguments of the learned counsel for the claimants, learned counsel for the Corporation and meticulously perused the material available on record. We have given our anxious consideration to the submissions advanced on both sides. The point that would arise for consideration in these appeals is whether the impugned judgment and award of the Tribunal calls for any interference?

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8. The aforementioned point is answered in ‘affirmative’ for the following reasons:

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(a) It is not in dispute that on 29.10.2017, one Imtiyaj @ Imtiyaz Ahmed got down at the Hubli

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HC-KAR

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Old Bus Stand and thereafter, he was going out from the bus stand premises, at that time, a bus bearing Registration No. KA-49-F-1581 driven by its driver in a rash and negligent manner, dashed the Imtiyaj and the right-side front wheel of the bus ran over the shoulder and arms of the Imtiyaj and due to the impact of accident, he sustained injuries and he succumbed to the injuries. The wife, children and unmarried sister of the deceased Imtiyaj filed a claim petition seeking compensation of Rs.50,00,000/-. The Tribunal considering the evidence available on record awarded total compensation of Rs.18,02,500/- along with interest at the rate of 9% per annum.

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(b) The records indicate that the claimants

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have not produced legally acceptable evidence to prove the income of the deceased. In the absence of evidence, we notionally reassess the income of the deceased at Rs.10,250/- per month placing reliance of the notional income chart prepared by the Karnataka State Legal Services Authority. The

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NC: 2025:KHC-D:11409-DB MFA No. 103209 of 2019 C/W MFA No. 102676 of 2019

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deceased was aged about 40 years. Hence, there should be an addition of 25% of the assessed income

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under the head of loss of future prospects of the deceased. Thus, the loss of dependency is reassessed as under:

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Rs.10,250 + 25% X 12 X 15 – ¼ = Rs.17,29,687/-

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(c) The claimants are wife, children and unmarried sister of the deceased, hence, they are entitled consortium of Rs.44,000/- each which includes 10% escalation. The claimants are also entitled to Rs.16,500/- under the head of loss of estate and Rs.16,500/- under the head of transportation of dead body and funeral expenses. The said amounts include 10% escalation.

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(d) The contention of the learned counsel of

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appellant/Corporation with regard to the aspect of contributory negligence is required to be rejected. The jurisdictional Police after investigation filed charge sheet against the driver of the Corporation’s bus. The

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pleading and evidence on record indicate that there is negligence on the part of the driver of the bus, hence, question of considering contributory negligence of the deceased would not arise in the absence of the acceptable evidence on record.

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(e) The Tribunal without any justifiable reason awarded interest at the rate of 9% per annum which is required to be reduced at 6% per annum taking note of the prevailing rate of interest of the nationalized banks on term deposits. The claimants would be entitled to interest at the rate of 6% per annum on the total compensation amount from the date of petition till realisation.

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(f) The contention of the Corporation that Rs.15,000/- interim compensation paid is required to deducted from total compensation cannot be considered. The amount paid immediately after accident is an ex-gratia amount, hence, it cannot be deducted from the total compensation assessed and awarded to the claimants.

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(g) The claimants would be entitled to

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modified compensation on the following heads:

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Particulars	Amount (in Rs.)
Loss of dependency	17,29,687/-
Loss of estate	16,500/-
Transportation of dead body and funeral expenses	16,500/-
Loss of consortium (i.e.Rs.44,000 X 4)	1,76,000/-
Total	19,38,687/-

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9. Thus, the claimants would be entitled to total

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compensation of Rs.19,38,687,/- as against Rs.18,02,500/awarded by the Tribunal.

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10. Hence, we proceed to pass the following:

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ORDER

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i. Both the appeals are allowed in part .

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ii. The impugned judgment & award passed by Tribunal is modified to an extent that the claimants would be entitled to total compensation of Rs.19,38,687,/- as against Rs.18,02,500/- awarded by the Tribunal.

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iii. The entire compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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iv. Insurance company shall deposit the entire compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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v. The apportionment, deposit and disbursement shall be made as per award of the Tribunal.

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vi. Registry to transmit the records along with the amount in deposit, if any, to the Tribunal forthwith.

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vii. Draw modified award accordingly.

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Sd/(S.SUNIL DUTT YADAV) JUDGE

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Sd/(VIJAYKUMAR A.PATIL) JUDGE

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RH /CT-AN List No.: 1 Sl No.: 50

Smt.Hashmata Banu v. the Managing Director

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Smt.Hashmata Banu v. the Managing Director

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