Smt Sheela W/O Mahaning Alias Hanamanth Jalihal Vs the Divisional Controller

THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE COURT OF ADDL. SENIOR CIVIL JUDGE, JAMAKHANDI AND MACT-VI, JAMKHANDI IN MVC NO.520/2022 DATED 25.06.2024 IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA CROB NO.100039 OF 2025

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BETWEEN:

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SMT. SHEELA W/O. MAHANING @ HANAMANTH JALIHAL,

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AGE: 35 YEARS, OCC: HOUSEHOLD WORK.

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KUMARI BHAVANI D/O. MAHANING @ HANAMANTH JALIHAL, AGE: 16 YEARS, OCC: STUDENT (MINOR).

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NC: 2025:KHC-D:11902-DB MFA No. 104700 of 2024 C/W MFA.CROB No. 100039 of 2025

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HC-KAR

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KUMARI TANUSHRI D/O. MAHANING @ HANAMANTH JALIHAL, AGE: 14 YEARS, OCC: STUDENT (MINOR), SINCE APPELLANT NO.2 AND 3 ARE MINORS REP. BY M/G APPELLANT NO.1

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SHRI GURAPPA S/O. IRAPPA JALIHAL, AGE: 73 YEARS, OCC. NIL.

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SMT. LAXMIBAI W/O. GURAPPA JALIHAL, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, ALL ARE R/O. MUDHOL ROAD, JAMKHANDI, DIST. BAGALKOTE-587313.

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…CROSS OBJECTORS

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(BY SRI. SIDDAPPA S. SAJJAN, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER, KSRTC UDAPI DIVISION, UDUPI DEPOT, (OWNER OF KSRTC BUS BEARING REGD NO.KA 19/F-3367) SUMMONS BE SERVED THROUGH DEPOT MANAGER, NWKRTC, JAMKHANDI-587101

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…RESPONDENT

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

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THIS MFA CROB IN MFA NO.104700/2024 IS FILED UNDER ORDER 41 RULE 22 OF CPC, PRAYING TO ENHANCE THE COMPENSATION AND AWARD COMPENSATION AS CLAIMED BY THE APPELLANTS BY MODIFYING AWARD DATED 25.06.2024, IN MVC NO.520/2022 PASSED BY THE COURT OF ADDL. SENIOR CIVIL JUDGE, JAMKHANDI AND MACT-VI, JAMKHANDI, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL AND MFA CROB, COMING ON FOR HEARING ON IA, 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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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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HC-KAR

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ORAL JUDGMENT

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

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MFA No.104700 of 2024 filed by the Corporation and MFA CROB No.100039 of 2025 filed by the cross objectors/claimants. Both the appeals are arising out of the judgment and award dated 25.06.2024 passed in MVC No.520/2022 by the Additional Senior Civil Judge and MACT-VI, Jamkhandi¹ .

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Brief facts leading to filing of these appeals are that on 19.06.2022 one Mahaning was proceeding on motorcycle bearing registration No.KA-48/S-3078. At that time, the driver of the appellant-Corporation bus bearing registration No.KA-19/F3367 drove the bus in a rash and negligent manner and dashed the motorcycle resulted in accident and Mahaning sustained grievous injuries and succumbed to the injuries. The wife, children and parents filed a claim petition.

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The appellant - Corporation filed detailed objection denying his age, income, avocation and aspect of negligence and sought for dismissal of the claim petition. The Tribunal recorded

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1 ‘Tribunal’ for short

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HC-KAR

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the evidence. Claimant No.1 examined herself as PW1 and got marked Exhibits P1 to P9. The respondent examined RW1, the driver of the bus and got marked Exhibits R1 and R2. The Tribunal, on appreciation of the oral and documentary evidence, recorded the finding that the driver of the appellant Corporation bus was negligent and caused the accident in question and awarded total compensation of ₹28,36,900/- along with interest at the rate of 6% per annum from the date of petition till realization. Being aggrieved, the Corporation is in appeal challenging the aspect of negligence and the quantum of compensation and claimants are in cross objection seeking higher compensation.

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Sri S.C.Bhuti, learned counsel appearing for the appellant-Corporation submits that the Tribunal committed grave error in recording the finding that the driver of the bus has caused the accident and was negligent. It is submitted that the deceased was the rider of the motorcycle and there were two pillion riders. Hence, he lost control over the motorcycle and caused the accident and this aspect has not been appreciated by the Tribunal. He further submits that the deceased was

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intoxicated at the time of driving the motorcycle, which is the cause for the accident and none of the aspects have been appreciated by the Tribunal and incorrectly recorded the finding that the driver of the bus has caused the accident and saddled the entire liability on the Corporation. Hence, he seeks to shift the liability to certain extent on the deceased as he also contributed to the accident in question. He further submitted that the deceased was aged about 42 years. Hence, appropriate addition under the head of loss of future prospects would be 25%. However, the Tribunal incorrectly considered 40% as loss of future prospects. Hence, he seeks to allow the appeal by dismissing the cross objection filed by the claimants.

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Sri Siddappa S.Sajjan, learned counsel appearing for the cross objectors supports the impugned judgment and award of the Tribunal insofar as aspect of negligence is concerned. It is submitted that the deceased was working as a Manager in Renuka Lodge and drawing ₹20,000/- per month. However, the Tribunal, without appreciating the documentary evidence placed by the claimants at Exhibits P7 to P9, had incorrectly assessed the income of the deceased at ₹14,750/- per month. He seeks to

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HC-KAR

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enhance the same at ₹20,000/- per month by allowing the cross objection.

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We have heard the arguments of the learned counsel for the appellant-Corporation, learned counsel for the cross objectors-claimants and meticulously perused the material available on record. We have given our anxious consideration to the submissions advanced.

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The point that arises for consideration is:

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“Whether the impugned judgment and award of the Tribunal calls for any interference?”

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The parties to the proceeding do not dispute that in a

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road accident dated 19.06.2022, the husband of the claimant No.1 and the father of the claimants No.2 and 3 and son of the claimants No.4 and 5 sustained grievous injury and succumbed to the injuries. The Tribunal taking note of the fact that the accident was reported to the Jurisdictional Police and on investigation, the Jurisdictional Police filed a charge against the driver of the bus in Crime No. 144 of 2022 and came to the conclusion that the driver of the bus was negligent and caused the accident in question. We have perused the charge sheet

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material and oral evidence available on record. The evidence on record indicates that the accident was caused on the left side of the road where the deceased was proceeding from Mudhol to Jamkhandi and the bus was proceeding from Jamkhandi to Mudhol. The sketch on record enclosed along with charge sheet, which is marked as Exhibit P2 clearly indicates that the driver of the bus drove the bus on extreme right side of the road and dashed to the motorcycle. Taking note of the sketch available on record and on perusal of charge sheet material, we are of the considered view that the Tribunal was fully justified in recording the finding that the accident is caused due to the negligence of the driver of the bus. The contention of the appellant - Corporation that there were two pillion riders and the rider of the motorcycle was intoxicated. In our considered view that itself will not constitute a negligence. The aspect of negligence is required to be pleaded and proved before the Tribunal by the Corporation, if they are claiming contributory negligence on the part of the rider of the motorcycle. In the case on hand, there is no evidence on record available to come to conclusion that the rider of the motorcycle was negligent and caused the accident. Merely there were two pillion riders and the rider was intoxicated cannot

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be a ground to come to conclusion that the deceased was negligent. Hence, said contention was rejected. The Tribunal taking note of the decision of the Hon’ble Supreme Court in the case of New India Insurance Company Ltd. through its Incharge (Legal Hub) v. Ujjawala and others² held that nonwearing of the helmet by the pillion rider, it cannot amount to contributing to the accident though it may be traffic violation. Keeping in mind the said ratio laid down by the Hon'ble Supreme Court, we are of the considered view that, the Corporation has not placed any evidence to establish the contributory negligence of the deceased rider of the motorcycle. Hence, we are of the considered view that the finding recorded by the Tribunal with regard to negligence is required to be sustained.

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Insofar as the award of compensation under the head of loss of future prospects is concerned, records indicate that the Tribunal awarded 40% of assessed income towards future prospects, which in our view is required to be altered as the deceased was aged about 42 years at the time of accident, taking note of the same and keeping in mind the law laid down

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2 2021 ACJ 885

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by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others³ , the claimants would be entitled to an addition of future prospects at the rate of 25% to the assessed income of the deceased. Insofar as the income of the deceased is concerned, the claimants-cross objectors have contended that the deceased was working as a Manager in Renuka Lodge and earning ₹20,000/and to support the same, claimants placed reliance on Exhibits P7 to P9. We have perused Exhibits P7 to P9. Those are the documents claimed to have been issued by the employer of the deceased. However, those documents are not supported with any corroborative evidence. Nothing has prevented the claimants to examine the author of the document or to have produced the bank statement for receipt of the amount of ₹20,000/- per month from the employer. Hence, in the absence of any legally acceptable evidence with regard to the income of the deceased where the Tribunal has fully justified in assessing the income of the deceased at ₹14,750/- per month. Taking note of the age of the deceased, the appropriate multiplier would be ‘14’ and

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3 2017 (16) SCC 680

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deduction would be 1/4^th towards personal expenses of the deceased, since there are five dependents. Hence, the loss of dependency is recomputed as under:

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₹14,750 + 25% x 12 x 14 x ¾ = ₹23,23,125/-

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The claimants are entitled to an amount of ₹44,000/- each under the head of consortium including 10% escalation. The claimants are also entitled to an amount of ₹16,500/- towards loss of estate and ₹16,500/- towards funeral expenses including 10% escalation. Thus, the claimants are entitled for the following modified compensation:

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1	Loss of dependency	₹23,23,125/-
2	Loss of consortium (Rs.44,000/- each to appellants No.1 to 5)	₹2,20,000/-
3	Transportation of dead body and Funeral expenses	₹16,500/-
4	Loss of estate	₹16,500/-
	Total	₹25,76,125/-

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Thus, the claimants would be entitled to total compensation of ₹25,76,125/- as against ₹28,36,900/-awarded by the Tribunal.

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Hence, we proceed to pass the following:

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HC-KAR

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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 and award of the Tribunal is modified holding that the claimants are entitled to total compensation of ₹25,76,125/- as against ₹28,36,900/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. The Corporation shall deposit the aforesaid compensation amount along 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 amount in deposit be transmitted to the Tribunal along with TCR forthwith.

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vi. 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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CLK /CT-AN

Smt Sheela W/O Mahaning Alias Hanamanth Jalihal v. the Divisional Controller

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Smt Sheela W/O Mahaning Alias Hanamanth Jalihal v. the Divisional Controller

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